I. Introduction.

The trust relationship between the United States and Indian tribes will be a factor in most, if not all, transactions involving Indian tribes. The origins of the trust relationship and the standard of care applicable to the federal government as trustee are crucial to understanding how the federal government will act in furtherance of the trust relationship.

The United States only has fiduciary duties to Indians pursuant to specific statutes or regulations or where the United States has exercised control or supervision over Indian monies or properties. The United States also appears to have a "general trust relationship" with Indians, but that general relationship does not give rise to any specific fiduciary duties.

The contours of the fiduciary duties of the United States to Indians are primarily defined by the statutes and/or regulations that create such duties. The fiduciary duties implied by the common law of trusts may also be applicable where statutes or regulations impose fiduciary duties, but do not define the standard of care applicable to such duties. Finally, although the "general trust relationship" between the United States and Indians does not give rise to any specific fiduciary duties, it may be reflected in rules of construction if ambiguous treaties, statutes, or other instruments must be interpreted.

II. Origin of the Trust Relationship.

The United States Supreme Court addressed the nature and scope of the trust obligation owed by the United States to Indians in United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349 (1980) ("Mitchell I"), and United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961 (1983) ("Mitchell II"), and these cases remain central to the Court's analysis of the existence and scope of trust relationships. In many respects, the Mitchell cases redefined the United States' trust obligations and pulled together various doctrines relating to the fiduciary duties owed to Indians. Any cases addressing these issues prior to the decision in Mitchell II must therefore be read with particular attention and reference to the later decisions of the Supreme Court. Because these cases are so influential on the current state of the law regarding the United States' trust obligations to Indians, they will be discussed separately. Then, this memorandum discusses further refinement of the general framework established in the Mitchell cases.

A. The Mitchell cases.

In both Mitchell I and Mitchell II, the Supreme Court addressed the fiduciary obligations of the United States to manage timber resources on allotted lands held by individual Indians. The United States Claims Court originally held that the General Allotment Act, 25 U.S.C. § 348 ("GAA"), provided a basis for suit for damages for breach of trust duties under the Tucker Act, because the United States was required by statute to "hold the land ... in trust for the sole use and benefit" of the Indian allottee. Mitchell I, 445 U.S. at 541, 100 S.Ct. at 1353. Mitchell I rejected this proposition, holding that the General Allotment Act created only a "limited trust relationship between the United States and the allottee that does not impose any duty upon the Government to manage timber resources." Id. at 542, 100 S.Ct. at 1353. Mitchell I held that the GAA did not create "full fiduciary responsibilities as to the management of allotted lands." Id. The Court held that the purpose of the limited trust relationship created by the GAA was to prevent alienation of the land and to ensure that allottees would be immune from state taxation. Id. at 544, 100 S.Ct. at 1354.

Mitchell I therefore reversed the decision of the Court of Claims and remanded the case for consideration of remaining issues, including whether fiduciary duties arose by operation of other federal statutes. Id. at 546 n.7, 100 S.Ct. at 1355, n.7. On remand, the Court of Claims found the United States subject to suit because various other statutes addressing management of timber resources on Indian lands imposed enforceable trust duties, and the case returned to the Supreme Court. ⁽¹⁾ In Mitchell II, the Supreme Court affirmed the decision of the Court of Claims and held that the plaintiffs, individual Indian allottees, could sue for damages under the Tucker Act based on alleged fiduciary breaches by the United States. First, the Court held:

In contrast to the bare trust created by the General Allotment Act, the statutes and regulations before us clearly give the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians. They thereby establish a fiduciary relationship and define the contours of the United States' fiduciary responsibilities.

Mitchell II, 463 U.S. at 224, 103 S.Ct. at 2971-72. The Court noted that the statutes required the Secretary to base sales of Indian timber on consideration of "the needs and best interests of the Indian owner and his heirs," and that Bureau of Indian Affairs ("BIA") regulations recognized the Government's duties to manage the Indian forests to obtain the greatest revenue for the Indians consistent with proper protection of the forests. Id. at 224, 103 S.Ct at 2972. The Court held that those statutes and regulations expressly created a fiduciary relationship.

Second, the Court stated that a fiduciary relationship would necessarily arise "when the Government assumes such elaborate control over forests and property belonging to Indians." Id. at 225, 103 S.Ct. at 2972. The language used by the Supreme Court suggests that "such elaborate control" refers to the specific statutory and regulatory scheme regarding management of Indian timber resources. In such a situation, all the necessary elements of a common-law trust would be present: a trustee, a beneficiary, and a trust corpus, and the Supreme Court suggests that common law trust concepts would therefore be applicable. Id. The Court held:

"[W]here the Federal Government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless Congress has provided otherwise) even though nothing is said expressly in the authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection." Navajo Tribe of Indians v. United States, 224 Ct. 171, 183, 624 F.2d 981, 987 (1980).

Mitchell II, 463 U.S. at 225, 103 S.Ct. at 2972. It is also possible to read Mitchell II as implying that, even where a fiduciary relationship is not expressly established by statute or regulation, trust obligations may arise from any control or supervision exercised by the federal government over Indian properties. Mitchell II held that while the GAA did not establish the requisite level of "control or supervision" because it created only a limited trust relationship, the other federal statutes addressed on remand did establish the United States' "control or supervision" over Indian properties.

Third, Mitchell II also contemplates a "general trust relationship" not grounded in any specific statute or treaty. Although the Court does not imply any fiduciary duties from the general relationship, the Court used the relationship to support its construction of the applicable statutes and regulations:

Our construction of these statutes and regulations is reinforced by the undisputed existence of a general trust relationship between the United States and the Indian people. This Court has previously emphasized the "distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people. . . . This principle has long dominated the Government's dealings with the Indians. . . .

Id. (citations omitted). The Court does not clarify exactly how the general trust relationship affected its analysis, if at all, but the Court appears to have considered it only as reflecting a canon of construction, and not as an independent source of fiduciary duties.

B. Creation of Fiduciary Duties Under a Specific Statute or Regulation.

Mitchell II provides that where federal statutes and regulations create a fiduciary relationship, the contours of that relationship also are defined by those statutes or regulations. 463 U.S. at 224, 103 S.Ct. at 2971-72. Thus, in Mitchell II, the federal statutes and regulations requiring the Secretary to consider the needs and best interests of the Indian owners in timber sales imposed a fiduciary obligation on the Secretary to manage timber resources for the best interests of the Indian owners. Mitchell II at 224, 103 S.Ct. at 2972.

The analysis used in both Mitchell cases suggests that trust obligations are defined in the first instance by federal statutes or regulations. In Mitchell I, the Court in fact found that the General Allotment Act, 25 U.S.C. § 348, created a trust relationship between the United States and Indians. Mitchell I at 542, 100 S.Ct. at 1353. However, the Court used the General Allotment Act itself to define the subject matter to which the resulting trust relationship applied, and concluded that it created only a "limited trust relationship" which did not impose any duty on the Government to manage timber resources. Id.

In Black Hills Inst. v. South Dakota School of Mines and Technology, 12 F.3d 737 (8th Cir. 1993), cert. denied, 513 U.S. 810 (1994), the Eighth Circuit similarly interpreted the subject matter addressed by the General Allotment Act. Citing both Mitchell cases, the court held that while the Act did not impose any duties relating to management of Indian property, the Act clearly imposed on the Government the duty to act as a trustee regarding alienation of Indian property. Black Hills, 12 F.3d at 743. In Black Hills, a research institute purchased a dinosaur fossil found on Indian allotted land from the Indian owner. The fossil was subsequently seized by the United States and held in trust for the Indian owner. The research institute argued that the General Allotment Act created no duty of the United States addressing fossils. However, after interpreting the limited trust relationship created by the GAA, the court held that the research institute did not enter into a valid purchase of the fossil because the Secretary of the Interior did not approve of the alienation of the Indian property, as required by 25 U.S.C. § 464 and 483. Id.

Even where fiduciary duties are established by federal statutes and regulations and address the subject matter at issue, however, the United States' standard of care in implementing its fiduciary duties is still limited by applicable statutes and regulations. In Pawnee v. United States, 830 F.2d 187 (Fed. Cir. 1987), cert. denied, 486 U.S. 1032 (1988), the court addressed the fiduciary obligations imposed with respect to Indian mineral lands leased for oil and gas purposes. Pawnee, 830 F.2d at 189. The court held that the Government had express fiduciary obligations imposed by the Federal Oil and Gas Royalty Management Act ("FOGRMA"), 30 U.S.C. §§ 1701-57, and that the Secretary was placed "at the center of the leasing of Indian mineral lands" by the Indian Long-Term Leasing Act, 25 U.S.C. § 396. Id. The court compared the case before it to Mitchell II:

From these statutes and regulations we must draw the conclusion, which differs from that of the Claims Court, that the United States has a general fiduciary obligation toward the Indians with respect to the management of those oil and gas leases.^[fn] This case is very much like United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II, dealing with lumber) in that here the governing statutes and regulations (a) give elaborate powers to Interior with respect to those leases, (b) always call for consideration of the best interests of the Indians, (c) require proceeds of the leases to be given to the Indians and, (d) recognize the existence of a general trust relationship toward the Indians with respect to the oil and gas products of these lands. It is by no means controlling that the statutes fail to say explicitly that the Indians are entitled to damages if their rights are violated.

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^[fn]This does not mean ... that every Government action disliked by the Indians is automatically a violation of that trust.

Pawnee, 830 F.2d at 190.

In Pawnee, Indian lessors claimed that the United States had breached its fiduciary obligations by failing to pay royalties on the basis of the highest market value for the type of gas produced by lessees. Id. at 191. The court rejected this claim because the scope of fiduciary obligations were defined by the statutes and regulations that created the obligations:

Where, as in this case, the regulations and the leases deal directly with the problem and are not challenged, the Indians cannot demand that the United States ignore those provisions or act contrary to them. The scope and extent of the fiduciary relationship, with respect to this particular matter, is established by the regulation and leases. Appellants cannot create a viable fiduciary claim purely by insisting that this court (or the Claims Court) establish different or higher standards. That is a function solely of Congress or its delegates, not of the courts acting on their own. Interior is not required to go beyond directives and leases which are consistent with the statutes and regulations.

Pawnee, 830 F.2d at 192. Thus, even though a fiduciary duty was clearly and expressly created by statute, and the United States clearly exercised control or supervision over the Indian mineral leasing process, the standard of care required of the United States in performing those duties was limited by the applicable statutes and regulations.

Similarly, in Coosewoon v. Meridian Oil Co., 25 F.3d 920, 929 (10th Cir. 1994), individual Indian lessors alleged that the United Stated breached its fiduciary duties by failing to assess penalties against Meridian and failing to cancel Meridian's lease as a result of Meridian's failure to timely pay royalties properly under FOGRMA. Coosewoon, 25 F.3d at 929. The Tenth Circuit agreed with the district court that no breach occurred because the government had enforced all applicable statutes and regulations. Id. The court held that the Government's fiduciary duties were defined in part by FOGRMA:

The United States has a general fiduciary obligation to Indians with respect to management of oil and gas leases on Indian land. ... The scope and extent of this fiduciary relationship is defined in part by FOGRMA and the regulations promulgated thereunder. ...

Id. Because the Government had audited Meridian's royalty payments and ordered Meridian to make certain payments, the court held, "the United States has complied with applicable statutes and regulations concerning the assessment of penalties and therefore did not breach its fiduciary duties." Id. at 930, citing Pawnee, 830 F.2d at 192. See also Han v. United States Department of Justice, 45 F.3d 333, 337 (9th Cir. 1995) (even if Hawaii Admission Act implied general trust relationship, it did not give rise to fiduciary duty for federal government to bring suit against the State of Hawaii regarding management of Hawaiian home lands).

The analysis used by Mitchell II and subsequent cases is consistent with prior federal cases on this issue. In Sac and Fox Tribe of Indians of Oklahoma v. United States, 383 F.2d 991 (Ct. Cl.) cert. denied, 389 U.S. 900 (1967), the court used a similar analysis in holding that the Trade and Intercourse Act of 1802, 2 Stat. 139, did not require the United States to compensate the Sac and Fox Tribe at greater than market value of lands at the time of the United States' acquisition. Sac and Fox, 383 F.2d at 1001. The court held:

But the label attached to the relationship by the courts, whether it be trustee, fiduciary, or guardian is unimportant alone and does not control the measure of accountability. We must look to the language contained in the treaty, agreement, order, or statute under which the claim is brought to ascertain whether there exists, (1) a legal relationship wherein the United States is in fact and in law a trustee, fiduciary or guardian, or (2) a general relationship without any of such attributes or obligations, but which is described in the same terms by the courts. ... When this is done in this case, we are required to hold that the relationship between the parties was a general one in which there was not legal guardianship or resultant constructive trust.

Id.

Thus, the Court of Claims applied a test very similar to that used in Mitchell II; first, the court looked to whether express fiduciary obligations had been created, and second, the court looked to whether the relationship between the parties was such that fiduciary obligations were implied from the parties' general relationship. It is possible that Mitchell II and Sac and Fox could be read to establish two different avenues to the creation of fiduciary duties. First, a statute or regulation could expressly create fiduciary duties. Second, fiduciary duties might also be established where the United States has "control or supervision" over Indian monies or properties, but where no trust relationship has been established expressly. However, any such control or supervision would have to exceed the level held to be inadequate in Mitchell I.

In any event, the creation of fiduciary duties by statute or regulation is closely tied to the extent that the United States has "control or supervision" over Indian monies or properties because the United States would necessarily exercise such control or supervision by means of statute or regulation.

C. Determining Whether "Control or Supervision" Exists.

In Mitchell II, the Supreme Court held that the Federal Government's "control or supervision over tribal monies or properties" normally establishes fiduciary duties with respect to such monies or properties. Mitchell II at 225, 103 S.Ct. at 2972. Mitchell II indicates that where such control exists, a common-law trust arises under which the United States has fiduciary duties. Id. Citing the Restatement (Second) of Trusts, § 2, Comment h, Mitchell II notes that where control over Indian property exists, all the necessary elements of a common-law trust are met: existence of trustee, beneficiary, and corpus. Id. at 225 n.30, 103 S.Ct. at 2972 n.30. As noted above, it is not entirely clear whether "control or supervision" can exist absent an express statutory or regulatory provision. Whether or not a statute or regulation expressly creating a trust is required, the definition of "control or supervision" will be at issue.

The Federal Circuit has specifically addressed the degree of control or supervision that is required to give rise to fiduciary duties. In Brown v. United States, 86 F.3d 1554 (Fed. Cir. 1996), the court considered whether the federal government had the requisite control over commercial leasing of Indian lands to be subject to fiduciary duties. The Court of Federal Claims granted the United States' motion to dismiss based on Mitchell II because the government did not have "comprehensive management responsibilities or elaborate control over Indian lands or property for the purpose of furthering and maximizing the best interests of the Indian owners." Brown at 1558 (emphasis omitted). The Federal Circuit reversed, holding that the Court of Federal Claims had applied too narrow a rule for establishing the "control or supervision" necessary to give rise to fiduciary duties:

According to this disjunctive "control or supervision" test, nearly complete government management (i.e., "supervision") or control, while more than sufficient to create an enforceable fiduciary duty, is not necessary. ... The Court's alternative test of "control or supervision" make eminent good sense as well. If the Secretary controls leasing, that he or she does not also supervise or manage it should not matter. Under Mitchell II, then, as properly (and literally) construed, the assumption by Congress and/or the Secretary, its delegatee, of control of allottee money or property beyond the limited trust embodied in the General Allotment Act imposes on the government a fiduciary duty to the allottees.

Brown, 86 F.3d at 1560. The court noted that the same statutes and regulations that create fiduciary duties limit their scope by defining the contours of the United States' fiduciary responsibilities. Id.

The Brown court held that the commercial leasing regime created for trust lands in 25 U.S.C. § 415(a) and 25 C.F.R. part 162 imposes fiduciary duties on the government in its dealings with Indian allottees. Id. at 1563. However, the mere fact that such duties exist "does not mean that any and every claim by the Indian lessor necessarily states a proper claim for breach of the trust." Id. Rather, the breach of trust claim must be assessed in light of the scope of the relationship established by the relevant regulations. "In other words, where no specific statutory requirement or regulation is alleged to have been breached by the Secretary, the money claim against the government must fail." Id. The court remanded for consideration of whether plaintiffs' claims that the United States failed to adequately monitor the commercial leasing of plaintiffs' lands could constitute a proper claim for breach of fiduciary duty. Thus, where there is "control or supervision," fiduciary duties are still limited to the scope of such control or supervision, rather than being generally applicable.

Brown provides that the subject matter of and standard of care in implementing fiduciary duties must be determined by reference to the applicable regulations. Brown at 1563. But, where such regulations do not include an express trust, the scope of fiduciary duties may be difficult to determine. Other courts have addressed this problem by implying common-law trust obligations in such situations, which seems appropriate in light of Mitchell II's reference to common-law trusts.

Mitchell II supported the "control or supervision" test with a quotation from Navajo Tribe of Indians v. United States, 624 F.2d 981 (Ct. Cl. 1980), in which the court addressed the Navajo Tribe's claims for an accounting from the United States for tribal timber lands. In Navajo Tribe, the court held that where the United States has control or supervision over tribal monies or properties, fiduciary duties automatically arose, while if no tribal money or property was involved, specific authority was required to imply fiduciary duties. Navajo Tribe, 624 F.2d at 988. The court held that where the United States had control or supervision over tribal monies or properties,

[t]he general law of fiduciary relationships can be utilized to the extent appropriate. ... This does not mean, however, that all the rules governing the relationship between private fiduciaries and their beneficiaries and accountings between them necessarily apply in full vigor in an accounting claim by an Indian tribe against the United States. ... In each situation, the precise scope of the fiduciary obligation of the United States and any liability for breach of that obligation must be determined in light of the relationships between the Government and the particular tribe.

Navajo Tribe at 988. As a result, the court held that the United States had a duty to the Navajo Tribe very similar to that of a private trustee:

Where a trust relationship between the Government and the Indians is established, the Government's actions "must [normally] be judged according to the standard applicable to a trustee engaged in the management of trust property." Coast Indian Community, supra, 213 Ct.Cl. at 153, 550 F.2d at 652.

Navajo Tribe at 989. Since Mitchell II cites Navajo Tribe for the "control or supervision" test, there is a strong implication that the Supreme Court approves of the application of common law trust principles where fiduciary duties arise because of such control or supervision.

The precise contours of United States' standard of care in performing fiduciary duties arising from the United States' control or supervision of Indian monies or properties is unclear. Brown suggests that the relevant regulatory scheme solely defines the scope of the duties, while Navajo Tribe suggests that the common law of trusts would apply to some degree. Navajo Tribe notes that the general law of fiduciary relationships can be used "to the extent appropriate," and held that the scope of the United States' fiduciary obligations must be determined in light of the relationships between the parties.

This approach is consistent with the general law of trusts. The Restatement (Second) of Trusts, § 164, comment c, states that the proposition that the precise terms of a trust "may be determined by interpretation of the words or conduct of the settlor in the light of the circumstances." Relevant circumstances include the comparative competence, station in life, financial circumstances, and relationship of the settlor, beneficiaries, and trustee, the value and character of the trust property, the purposes for which the trust is created, the usages of business, the circumstances under which the trust is to be administered, and the formality of relevant instruments. Restatement (Second) of Trusts, § 164, comment c. Therefore, under Navajo Tribe and general trust principles, the United States' standard of care and the subject matter of the United States' fiduciary obligations should be determined with reference to the United States' relationship with a particular tribe and surrounding circumstances.

Other courts have applied common law trust principles to define the nature of the United States' duties to Indians. See, e.g., Inter Tribal Council of Arizona, Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir. 1995); Jicarilla Apache Tribe v. Supron Energy Corp., 782 F.2d 855, 857 (10th Cir.) cert. denied, 479 U.S. 970 (1986), (adopting as majority opinion the dissent in Jicarilla Apache Tribe v. Supron Energy Corp., 728 F.2d 1555, 1564 (10th Cir. 1984)); Vizenor v. Babbitt, 927 F.Supp. 1193, 1201 (D.Minn. 1996); Covelo Indian Community v. Federal Energy Regulatory Comm'n, 895 F.2d 581, 586 (9th Cir. 1990) (addressing FERC's fiduciary duties to Indians). The better approach under Mitchell II appears to be to treat such fiduciary duties as a common-law trust with a trustee, a beneficiary, and a trust corpus. Of course, as described above, the parties would examine their specific relationship, including any relevant treaties, statutes, and regulations, to determine the precise terms of the trust. In particular, examination of the surrounding circumstances would be needed to determine (1) the precise subject matter of the trust -- that is, what properties or interests the United States had assumed "control or supervision" over; and (2) the standard of care applicable to the United States' conduct in execution of its fiduciary duties.

D. Obligations from the relationship between the United States and Indians.

Numerous cases note a "general trust relationship" between the United States and Indians. See Mitchell II, 463 U.S. at 225, 103 S.Ct. at 2972; Loudner v. United States, 108 F.3d 896, 900-01 (8th Cir. 1997); Brown, 86 F.3d at 1561; Moose v. United States, 674 F.2d 1277, 1281 (9th Cir. 1982); Vizenor v. Babbitt, 927 F.Supp. 1193, 1201 (D. Minn. 1996); Koniag v. Kleppe, 405 F.Supp. 1360, 1373 (D.D.C. 1975) aff'd in part and rev'd in part on other grounds, 580 F.2d 601 (D.C. Cir. 1978); Montana Bank of Circle, N.A. v. United States, 7 Cl. Ct. 601; 613-14 (Cl. Ct. 1985); Eastern Band of Cherokee Indians v. United States, 16 Cl. Ct. 75, 78, 1988 U.S. Cl. Ct. LEXIS 204, *8-9 (Cl. Ct. 1988).

Despite its recognized existence, however, the general trust relationship apparently carries no fiduciary duties:

"The general trust relationship in itself does not impose such duties as are erected in a complete trust with fully accountable fiduciary obligations. When the source of substantive law intended and recognized only the general, or bare, trust relationship, fiduciary obligations are not imposed on the United States."

Vizenor, 927 F.Supp. at 1201 quoting Montana Bank of Circle, N.A. v. United States, 7 Cl. Ct. 601, 613 (Cl. Ct. 1985).

Without significant mention of the "source" of such a trust relationship, it has been recognized in various forms for many years:

In one of the earliest decisions on the Indians' status, John Marshall wrote that "[t]heir relation to the United States resembles that of a ward to his guardian." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831). The Supreme Court "has recognized the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people," Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 1054, 86 L.Ed. 1777 (1942), and has cautioned that such dealings "should therefore be judged by the most exacting fiduciary standards." Id. at 297, 62 S.Ct. at 1054. The Court continues today to speak of Indians as "`wards of the nation, dependent upon its protection and good faith.'" Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208 n.17, 98 S.Ct. 1011, 1020 n.17, 55 L.Ed.2d 209 (1978), quoting McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973).

Moose v. United States, 674 F.2d at 1281 n.9.

In the Mitchell cases, the Supreme Court did not use the "general trust relationship" between the United States and Indians as a source of fiduciary duties. Rather, the Court stated that its construction of the federal timber statutes was reinforced by the "undisputed existence of a general trust relationship between the United States and the Indian people." Mitchell II, 463 U.S. at 225, 103 S.Ct. at 2972. Thus, the relationship may be used primarily as a rule of construction; one that requires a construction favoring protection of the Indian people.

One court has observed that, though the general trust relationship may also require the Government not to act against the interests of Indians without good cause, its duties do not required federal agencies to resolve disputes in favor of the tribe:

the Court finds that the Secretary was obliged, in a broad sense, to act in the nature of a trustee, which required him, at the least, not to disadvantage the Natives without good cause. This does not resolve the question, however. It must be recognized that under the statute and regulations the Secretary occupied a position as a quasi-judicial officer, and whatever trust responsibility he may have had did not extend so far as to require him to abandon his role as a neutral, impartial and disinterested decision maker. Clearly, Congress did not intend for all issues to be decided in favor of the Natives regardless of the underlying situation. This is particularly true where the interest competing with the Natives' was that of the public, to whom the Secretary as a government servant also had a solemn responsibility.

Koniag, Inc. v. Kleppe, 405 F.Supp. 1360, 1373 (D.D.C. 1975) (emphasis added).

III. Conclusion.

Companies doing business on or near Indian lands frequently have to deal with the federal government, either as a representative of tribal interests or as an arbiter of disputes, and sometimes both. In such situations, an accurate assessment of the scope and nature federal government's fiduciary duties to the tribe is crucial. Often, the federal agency itself will be unaware of or unclear on the appropriate fiduciary duties it must fulfill. Reference to specific statutes or regulations, or, often as important, the absence of specific statutes or regulations, is the first step in defining the federal government's appropriate role.

In addition, the nature of the federal government's control of or supervision over Indian resources may also be relevant to the scope of the federal government's responsibilities. By clarifying responsibilities in this matter, companies doing business on Indian lands can assist federal agencies in identifying and applying appropriate standards of review.

1. These statutes included the Act of June 25, 1910, § 7, 8, 36 Stat. 857, as amended, 25 U.S.C. §§ 406-407; the Indian Reorganization Act of 1934, 25 U.S.C. § 466, and the Act of April 30, 1964, 78 Stat. 186, codified at 25 U.S.C. 406.