Principles for the Discharge of the Secretary’s Trust Responsibility
ORDER NO. 3215
SIGNATURE DATE: April 28, 2000
Subject: Principles for the Discharge of the Secretary’s Trust Responsibility
Sec. 1 Purpose. This Order is intended to provide guidance to the employees
of the Department of the Interior who are responsible for carrying out
the Secretary’s trust responsibility as it pertains to Indian trust
assets. All Departmental regulations, policy statements, instructions,
or manuals regarding the discharge of the Secretary’s trust responsibility
shall be interpreted or developed using these trust principles. In addition,
these principles provide guidance to all persons who manage Indian trust
assets.
This Order is intended to address neither the unique government-to-government
relationship between the United States and American Indian and Alaska
Native tribal governments nor the unique relationship between the United
States and individual Indians, both of which have been referred to as
a trust responsibility.
Sec. 2 Background. The trust responsibility is defined by treaties, statutes,
and Executive orders. The most comprehensive and informative legislative
statement of Secretarial duties in regard to the trust responsibility
of the United States was set out in the American Indian Trust Fund Management
Reform Act of 1994 (Reform Act), Pub. L. 103-412, Oct. 25, 1994, 108 Stat.
4239. The Reform Act provides:
The Secretary’s proper discharge of the trust responsibilities of
the United States shall include (but are not limited to) the following:
(1) Providing adequate systems for accounting for and reporting trust
fund balances.
(2) Providing adequate controls over receipts and disbursements.
(3) Providing periodic, timely reconciliations to assure the accuracy of accounts.
(4) Determining accurate cash balances.
(5) Preparing and supplying account holders with periodic statements of their account performance and with balances of their account which shall be available on a daily basis.
(6) Establishing consistent, written policies and procedures for trust fund management and accounting.
(7) Providing adequate staffing, supervision, and training for trust fund management and accounting.
(8) Appropriately managing the natural resources located within the boundaries of Indian Reservations and trust lands.
25 U.S.C. § 162a(d).
As stated in the Reform Act, this list of duties is not exhaustive. Therefore,
to understand the nature of the Department’s duties, we must look
to a variety of other sources for guidance. One internal Departmental
source of guidance is legal advice from the Solicitor’s Office. The
Solicitor’s Office continues to provide the Department with guidance
through formal and informal legal advice regarding its trust responsibility.
The 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. This legal guidance
from the Solicitor's Office informs our interpretation of the duties required
by treaties, statutes, and Executive orders.
Legal guidance also is found in judicial decisions. In Seminole Nation
v. United States, 316 U.S. 286 (1942), the Supreme Court said that the
government in its dealings with Indians is charged with “moral obligations
of the highest responsibility and trust” and should be “judged
by the most exacting fiduciary standard.” Id. at 296. Many other
cases too numerous to list here have discussed the trust responsibility.
See Poafybitty v. Skelly Oil Co., 390 U.S. 365 (1968); Nevada v. United
States, 463 U.S. 110 (1983); United States v. Mitchell, 463 U.S. 206 (1983)
(Mitchell II); White Mountain Apache Tribe v. United States, 20 Cl. Ct.
371 (1990); Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252 (D.D.C.
1972); and Cobell v. Babbitt, 1999 WL 1581470 (D.D.C. Dec. 21, 1999).
It is with this legal history in mind that I issue this Order. This Order
is intended to provide guiding principles to interpret or develop policy
statements, regulations, and instructions regarding the proper discharge
of the Secretary’s trust responsibility. It would be beyond my authority,
and this Order is not intended, to impose the legal standards by which
a breach of trust claim would be reviewed in a court of law.
Sec. 3 Authority. This Order is issued in accordance with the Reform Act.
Sec. 4 Definitions.
a. “Beneficial owner” means both Indian tribes and individual
Indians who are the beneficial owners of Indian trust assets held by the
federal government in trust or with a restriction against alienation.
b. “Persons who manage Indian trust assets” means Departmental
employees or contractors, or Indian tribes that have been properly delegated
specific authority to manage or administer Indian trust assets.
c. “Trustee” means the Secretary or any person who has been
properly authorized to act as the Trustee for Indian trust assets.
d. “Indian trust assets” means lands, natural resources, money,
or other assets held by the federal government in trust or that are restricted
against alienation for Indian tribes and individual Indians.
e. “Trust responsibility” as used in this Order only pertains
to Indian trust assets.
Sec. 5 Trust Principles. The proper discharge of the Secretary’s
trust responsibility requires, without limitation, that the Trustee, with
a high degree of care, skill, and loyalty:
a. Protect and preserve Indian trust assets from loss, damage, unlawful
alienation, waste, and depletion;
b. Assure that any management of Indian trust assets that the Secretary
has an obligation to undertake promotes the interest of the beneficial
owner and supports, to the extent it is consistent with the Secretary’s
trust responsibility, the beneficial owner’s intended use of the
assets;
c. Enforce the terms of all leases or other agreements that provide for
the use of trust assets, and take appropriate steps to remedy trespass
on trust or restricted lands;
d. Promote tribal control and self-determination over tribal trust lands
and resources;
e. Select and oversee persons who manage Indian trust assets;
f. Confirm that tribes that manage Indian trust assets pursuant to contracts
and compacts authorized by the Indian Self-Determination and Education
Assistance Act, 25 U.S.C. 450, et seq., protect and prudently manage Indian
trust assets;
g. Provide oversight and review of the performance of the Secretary’s
trust responsibility, including Indian trust asset and investment management
programs, operational systems, and information systems;
h. Account for and timely identify, collect, deposit, invest, and distribute
income due or held on behalf of tribal and individual Indian account holders;
i. Maintain a verifiable system of records that is capable, at a minimum,
of identifying: (1) the location, the beneficial owners, any legal encumbrances
(i.e., leases, permits, etc.), the user of the resource, the rents and
monies paid, if any, and the value of trust or restricted lands and resources;
(2) dates of collections, deposits, transfers, disbursements, third party
obligations (i.e., court ordered child support, judgements, etc.), amount
of earnings, investment instruments and closing of all trust fund accounts;
(3) documents pertaining to actions taken to prevent or compensate for
any diminishment of the Indian trust assets; and (4) documents that evidence
the Secretary’s actions regarding the management and disposition
of Indian trust assets;
j. Establish and maintain a system of records that permits beneficial
owners to obtain information regarding their Indian trust assets in a
timely manner and protect the privacy of such information in accordance
with applicable statutes;
k. Invest tribal and individual Indian trust funds to make the trust account
reasonably productive for the beneficial owner consistent with market
conditions existing at the time the investment is made;
l. Communicate with beneficial owners regarding the management and administration
of Indian trust assets; and
m. Protect treaty-based fishing, hunting, gathering, and similar rights
of access and resource use on traditional tribal lands.
Sec. 6 General Provision. This Order is intended to enhance the Department’s
management of the Secretary's trust responsibility. It 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.
Sec. 7 Implementation. This Order shall be implemented as guidance for
the employees of all bureaus and offices within the Department as they
review, modify or promulgate new regulations, policy statements, instructions
or manuals, as they develop legislative and budgetary proposals, and as
they manage, administer, or take other actions directly relating to or
potentially affecting assets held in trust by the United States for Indian
tribes and individual Indians.
Sec. 8 Effective Date. This Order is effective immediately. It will remain
in effect until its provisions are converted to the Departmental Manual,
or until it is amended, superseded or revoked, whichever comes first.
In the absence of any of the foregoing actions, the provisions of this
Order will terminate and be considered obsolete on October 31, 2000.
/s/ Bruce Babbitt
Secretary of the Interior
SO#3215 4/28/00