Beyond a Zero-Sum Federal Trust Responsibility: Lessons from Federal Indian Energy Policy

Abstract

The federal government’s trust relationship with federally recognized Indian tribes is a product of the last two centuries of Federal Indian Law and federal-tribal relations. For approximately the last 50 years, the federal government has sought to promote tribal self-determination as a means to carry out its trust responsibilities to Indian tribes; but the shadows of prior federal policies, based largely on notions of tribal incompetence and federal paternalism, remain. Perhaps no other policy arena better demonstrates the history, evolution, and promise for reform of the federal trust relationship than Federal Indian energy policy, or the range of federal statutes and regulations devoted to the management of the development of tribal energy resources. This article provides a detailed review of Federal Indian energy policy and proposes a new path for reform that would allow for broader tribal authority and, potentially, a new conception of the federal trust responsibility.

Keywords: Federal Indian Law, Trust Responsibility, Energy Development, Leasing, Tribal Sovereignty