Towards a Trust We Can Trust: Taking the Duty to Transfer Land into Trust for Indian Tribes Seriously

Abstract

The purpose of this paper is to explain why the Secretary of the Interior should have a proactive role in placing land into trust status for the benefit of Indian tribes pursuant to the authority given to him by Congress under section 5 of the Indian Reorganization Act of 1934. Although the broader question addressed in this paper is the role the Indian trust doctrine should have in guiding all federal agencies when implementing legislation enacted for the benefit of Indians, the paper addresses this issue by focusing on the legitimacy of the regulations adopted by the Department in 1980 and 1995 to implement section five of the IRA. The thesis of this paper is that in the context of section 5 of the IRA, the trust doctrine should guide decisions made by the Secretary of the Interior. To demonstrate this point, after giving a short overview of the history of section five’s implementation, the paper examines the role of the trust doctrine in the implementation of legislation enacted for the benefit of Indians, and concludes by explaining why it should play a crucial role in the Secretary’s implementation of section 5 of the IRA.