The U.S. Supreme Court recently issued two decisions within a seven-day period implicating the rights of Indigenous people. The first was Haaland v. Brackeen, on June 15, 2023, regarding the Indian Children Welfare Act. The second was Arizona v. Navajo Nation, on June 22, 2023, concerning water rights.

It is not my intention to analyze these cases in any detail (although I may eventually get around to doing so). My goal here is modest. I’d like to draw attention to the way the court’s opinions – separated by a mere week – disparately characterize the trust relationship between the federal government and (in the words of the U.S.A.’s highest court) “Indian tribes.”

Here’s what Justice Amy Coney Barrett wrote for the majority in Haaland:

[T]he “trust relationship between the United States and the Indian people” informs the exercise of legislative power. United States v. Mitchell, 463 U. S. 206, 225–226 (1983). As we have explained, the Federal Government has “charged itself with moral obligations of the highest responsibility and trust” toward Indian tribes. United States v. Jicarilla Apache Nation, 564 U. S. 162, 176 (2011); Seminole Nation v. United States, 316 U. S. 286, 296 (1942) (‘[T]his Court has recognized the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people’).

And these are the words of Justice Brett M. Kavanaugh’s opinion of the court in Navajo Nation:

To be sure, this Court’s precedents have stated that the United States maintains a general trust relationship with Indian tribes, including the Navajos. Jicarilla, 564 U. S., at 176. But as the Solicitor General explains, the United States is a sovereign, not a private trustee, meaning that
“Congress may style its relations with the Indians a trust without assuming all the fiduciary duties of a private trustee, creating a trust relationship that is limited or bare compared to a trust relationship between private parties at common law.” Id., at 174…

So, while on June 15, 2023 the Supreme Court proclaims that the U.S.A. has “charged itself with moral obligations of the highest responsibility and trust toward Indian tribes,” on June 22, 2023, we are told that the U.S., as a sovereign – rather than a private trustee – can ignore all the fiduciary duties of a private trustee and create “a trust relationship that is limited or bare.”

I find it impossible not to think of the traditional saying long-embraced by various Native American tribes that, “the white man speaks with a forked tongue.” The idiom refers to someone who is lying or hypocritical and, therefore, no longer worthy of trust (much less a trust relationship).

Ironically, both Haaland and Navajo Nation cite to the same 2011 opinion to support their assertions, United States v. Jicarilla Apache Nation. That decision acknowledges two ugly realities facing our nation’s Indigenous peoples: that “the United States retains plenary (that is, absolute) authority to divest the tribes of any attributes of sovereignty,” and, that “the Government has often structured the trust relationship to pursue its own policy goals,” not the best interests of Native Americans.

It’s almost refreshing to hear the U.S. Supreme Court speak the truth. But, for the sake of equity and fairness, we need to devise a strategy to drastically alter this perspective.

With All Due Respect.

Art Giacalone