Statement of Matthew L. M. Fletcher, Michigan State University College of Law and Indigenous Law and Policy Center before the Secretarial Commission on Indian Trust Administration and Reform
30 Pages Posted: 10 May 2013
Date Written: April 15, 2013
I propose three recommendations. Mind you, I am a law professor that has moved away from the day-to-day practice of Indian law, so these are big-picture recommendations: 1. Statutory Recognition of a General Trust Obligation; 2. Statutory Mandate of Consultation and Consent Requirements in Indian Affairs; 3. Renunciation of the Guardian-Ward Relationship.
I make these recommendations based on my experience (limited as it may be so far) as Reporter of the Restatement, Third, the Law of American Indians. The American Law Institute is careful to limit its restatement projects to blackletter “restatements” of law. In our first meeting, I learned that to refer to the relationship between Indians and tribes and United States as a “trust responsibility,” “trust obligation,” or “trust duty” is a very contestable reference. Since responsibilities, obligations, and duties are enforceable by a court, to refer to a federal responsibility that is not generally enforceable in court is controversial at best.
Moreover, I hope the United States could incorporate many if not all of the operative, substantive provisions of the United Nations Declaration of the Rights of Indigenous Peoples. I focus here on the consultation and consent requirements that form the structure of the Declaration.
Keywords: Federal Indian trust relationship, United Nations Declaration on the Rights of Indigenous Peoples, guardian-ward relationship, federal trust duty, federal trust obligation
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