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Box 2574 :: :: Olympia, Wa Fido Net 1:352/333 :: :: 98507-2574 206-786-9629 :: :: USA The Quarto Mundista BBS :: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: NATIONAL CONGRESS OF AMERICAN INDIANS Major Policy Resolution No. 1 TREATIES & TRUST RESPONSIBILITIES Adopted October 21, 1976 WHEREAS, the immemorial rights of native peoples existed prior to and independent of normal recognition by the United States Government; and WHEREAS, these aboriginal rights were recognized by the fact that the United States Government entered into treaties with the Indian nations; and WHEREAS, the United States has affirmed that the trust responsibility extends to rights reserved by treaties, executive orders, agreements, statutes and aboriginal rights for which the United States is trustee, and that the central purpose of the trust responsibility is the protection and enhancement of tribal resources and tribal rights of self-government; and WHEREAS, the National Congress of American Indians believes that basic concepts relating to the Federal-Indian trust responsibility have consistently been misunderstood by state officials, Federal agencies and the Courts, resulting in unnecessary litigation, repeated delays, unreasonable expenses and unjust results to Indian people; and WHEREAS, Congressional legislation should expressly state that its purpose is not to create new law concerning the trust relationship, but to clarify certain basic aspects of the trust relationship; THEREFORE, BE IT RESOLVED that the trust responsibility is a duly binding responsibility on all Federal agencies, and no agency may take any action which directly or indirectly interferes with any trust right except as clearly authorized in the express language of a statute enacted by Congress and consented to by tribes; BE IT FURTHER RESOLVED that Indians and Indian tribes shall have the right to enjoin Federal or state action which interferes with trust rights by seeking equitable remedies in Federal courts. Toward this end, 28 USC Section 1362 shall be amended to provide for a waiver of sovereign immunity of the United States in any action commenced under that section. BE IT FURTHER RESOLVED that the trust responsibility of the United States is not limited to protection of treaty rights, but extends equally to aboriginal rights and other rights secured by agreement, executive order or statute enacted by Congress and to such other lands as the United States may acquire for the benefit of the tribes or the tribes may acquire for themselves, specifically: a. Congress should provide that both treaty and non- treaty rights protected by the trust responsibility shall not be abrogated or in any way infringed upon unless there exists both consent or affected tribes and express language of a statute enacted by Congress. b. That aspect of the trust responsibility extending to the protection and enhancement of tribal resources and particularly natural resources as a paramount responsibility of the United States involves a duty of care and exclusive loyalty consistent with the highest standards of common law trust. c. The United States holds bare legal title to these resources solely as trustee for Indians, and full equitable title is in the Indians. d. In the event of conflict between an Indian trust right or reasonable claim and a conflicting Federal policy, claim or program, all Federal agencies shall subordinate those conflicting Federal policies, claims or programs to the protection of Indian trust rights or reasonable claims unless those rights have been abrogated as provided above. BE IT FURTHER RESOLVED that Congress must amend 25 USC Section 175 to provide: a. That the Department of Justice has a mandatory duty to represent Indian tribes and individual Indians in all cases where there is a reasonable claim that is the subject of the trust responsibility unless the Department has a conflict of interest, in which case the United States shall provide funds to pay attorney's fees of private counsel selected by the tribe to represent its claims. b. In any case where the Department of Justice declines to represent Indians or Indian tribes on the ground that there is no reasonable legal support for the Indian claim, its decision to decline representation shall be subject to judicial review. The Department of Justice shall have the burden of showing that there is no reasonable legal support for the Indian claims, and, in the event of failure to carry its burden, the court shall allow reasonable attorneys' fees to the Indian litigant. c. In all cases where Indian tribes commence an action under this section or 28 USC Section 1362, they shall be entitled to all advantages that would inure to the United States as if it were a party to the case. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- To have a current Center For World Indigenous Studies Publication Catalogue sent to you via e-mail, send a request to jburrows@halcyon.com Center For World Indigenous Studies P.O. Box 2574 Olympia, WA U.S.A. 98507-2574 Fax: 206-956-1087 BBS: 206-786-9629