SO 3335, “Reaffirmation of the Federal Trust Responsibility to Federally Recognized Indian Tribes and Individual Indian Beneficiaries”

THE SECRETARY OF THE INTERIOR
WASHINGTON

ORDER NO. 3335
Subject: Reaffirmation of the Federal Trust Responsibility to Federally Recognized Indian
Tribes and Individual Indian Beneficiaries
Sec. 1 Purpose. In 2009, Secretary's Order No. 3292 established a Secretarial Commission on
Indian Trust Administration and Reform (Commission). The Commission issued its Final
Report and Recommendations in December 2013, which sets forth its views and
recommendations regarding the United States' trust responsibility. In response to the report, this
Order sets forth guiding principles that bureaus and offices will follow to ensure that the
Department of the Interior (Department) fulfills its trust responsibility.
Sec. 2 Authority. This Order is issued pursuant to the U.S. Constitution, treaties, statutes,
Executive Orders, and other Federal laws that form the foundation of the Federal-tribal trust
relationship and in recognition of the United States' trust responsibility to all federally
recognized Indian tribes and individual Indian beneficiaries.
Sec. 3 Background. The trust responsibility is a well-established legal principle that has its
origins with the formation of the United States Government. In the modem era, Presidents,
Congress, and past Secretaries of the Interior have recognized the trust responsibility repeatedly,
and have strongly emphasized the importance of honoring the United States' trust responsibility
to federally recognized tribes and individual Indian beneficiaries.
a.
Legal Foundation. The United States' trust responsibility is a well-established
legal obligation that originates from the unique, historical relationship between the United States
and Indian tribes. The Constitution recognized Indian tribes as entities distinct from states and
foreign nations. Dating back as early as 1831, the United States forman y recognized the
existence of the Federal trust relationship toward Indian tribes. As Chief Justice John Marshall
observed, "[t]he condition of the Indians in relation to the United States is perhaps unlike that of
any other two people in existence ... marked by peculiar and cardinal distinctions which exist
nowhere else." Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831). The trust responsibility
consists of the highest moral obligations that the United States must meet to ensure the
protection of tribal and individual Indian lands, assets, resources, and treaty and similarly
recognized rights. See generally Cohen's Handbook of Federal Indian Law§ 5.04[3] (Nell
Jessup Newton ed., 2012); Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942).
The U.S. Supreme Court has repeatedly opined on the meaning of the United States' trust
responsibility. Most recently, in 2011, in United States v. Jicarilla, the Supreme Court
recognized the existence of the trust relationship and noted that the "Government, following
'a humane and self-imposed policy ... has charged itself with moral obligations of the highest
responsibility and trust,' obligations 'to the fulfillment of which the national honor has been

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committed.'" The Court further explained that "Congress has expressed this policy in a series of
statutes that have defined and redefined the trust relationship between the United States and the
Indian tribes. In some cases, Congress established only a limited trust relationship to serve a
narrow purpose. In other cases, we have found that particular 'statutes and regulations ...
clearly establish fiduciary obligations of the Government' in some areas. Once federal law
imposes such duties, the common law 'could play a role.' But the applicable statutes and
regulations 'establish [the] fiduciary relationship and define the contours of the United States'
fiduciary responsibilities."' United States v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2324-25
(2011)(internal citations omitted).
While the Court has ruled that the United States' liability for breach of trust may be limited by
Congress, it has also concluded that certain obligations are so fundamental to the role of a trustee
that the United States must be held accountable for failing to conduct itself in a manner that
meets the standard of a common law trustee. "This is so because elementary trust law, after all,
confirms the commonsense assumption that a fiduciary actually administering trust property may
not allow it to fall into ruin on his watch. 'One of the fundamental common-law duties of a
trustee is to preserve and maintain trust assets."' United States v. White Mountain Apache Tribe,
537 U.S. 465, 475 (2003)(internal citations omitted).
b.
Presidential Commitments to the Trust Responsibility. Since this country's
founding, numerous Presidents have expressed their commitment to upholding the trust
responsibility. In the historic Special Message on Indian Affairs that marked the dawn of the
self-determination age, President Nixon stated "[t]he special relationship between Indians and
the Federal government is the result of solemn obligations which have been entered into by the
United States Government ... [T]he special relationship ... continues to carry immense moral
and legal force. To terminate this relationship would be no more appropriate than to terminate
the citizenship rights of any other American." Public Papers of the President: Richard M. Nixon,
Special Message on Indian Affairs (July 8, 1970).
For more than four decades, nearly every administration has recognized the trust responsibility
and the unique government-to-government relationship between the United States and Indian
tribes. President Obama established a White House Council on Native American Affairs with
the Secretary of the Interior serving as the Chair. President Barack Obama, Executive Order No.
13647, Establishing the White House Council on Native American Affairs (June 26, 2013). The
Order requires cabinet-level participation and interagency coordination for the purpose of
"establish[ing] a national policy to ensure that the Federal Government engages in a true and
lasting government-to-government relationship with federally recognized tribes in a more
coordinated and effective manner, including by better carrying out its trust responsibilities."
See also President Barack Obama, Memorandum on Tribal Consultation (Nov. 5, 2009);
President George W. Bush, Executive Order No. 13336, American Indian and Alaska Native
Education (Apr. 30, 2004); President William J. Clinton, Public Papers of the President:
Remarks to Indian and Alaska Native Tribal Leaders (Apr. 29, 1994); President George H.W.
Bush, Public Papers of the President: Statement Reaffirming the Government-to-Government
Relationship Between the Federal Government and Indian Tribal Governments (Jun.14, 1991);
President Ronald Reagan, American Indian Policy Statement, 19 Weekly Comp. Pres. Doc. 98
(Jan. 24, 1983); President Gerald L. Ford, Public Papers of the President: Remarks at a Meeting

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with American Indian Leaders (July 16, 1976); President Richard M. Nixon, Public Papers of the
President: Special Message on Indian Affairs (July 8, 1970); President Lyndon B. Johnson,
Public Papers of the President: Special Message to the Congress on the Problems of the
American Indian: "The Forgotten American" (March 6, 1968).
c.
Congress. Congress has also recognized the United States' unique responsibilities
to Indian tribes and individual Indian beneficiaries. Recently, Congress passed a joint resolution
recognizing the "special legal and political relationship Indian tribes have with the United States
and the solemn covenant with the land we share" and acknowledged the "long history of
depredations and ill-conceived polices by the Federal government regarding Indian tribes" and
offered "an apology to all Native peoples on behalf of the United States." lllth Cong. 1st Sess.,
S.J. Res 14 (Apr. 30, 2009). Congress has expressly and repeatedly recognized the trust
responsibility in its enactments impacting Indian Affairs. See, e.g., Indian Education and SelfDetermination and Assistance Act of 1975; Tribal Self-Governance Amendments of 2000;
American Indian Trust Fund Management Reform Act of 1994; Federally Recognized Indian
Tribe List Act of 1994; Tribally Controlled Schools Act of 1988 and Indian Education Act of
1972; Indian Child Welfare Act of 1978; Indian Mineral Development Act of 1982; Helping
Expedite and Advance Responsible Tribal Home Ownership Act of 2012 (HEARTH Act).
d.
The Department of the Interior. The Department likewise has recognized its
obligations as a trustee towards Indian tribes and individual Indian beneficiaries and has been
vested with the authority to perform certain specific trust duties and manage Indian affairs.
The Bureau of Indian Affairs (BIA) was transferred from the War Department to the Department
in 1849. Congress delegated authority to the Department for the "management of all Indian
affairs and of all matters arising out of Indian relations[,]" 25 U.S.C. § 2 (2014); see also 25
U.S.C. § 9 (2014); 43 U.S.C. § 1457. The BIA became the principal actor in the relationship
between the Federal Government and Indian Tribes, and later Alaska Native Villages, exercising
administrative jurisdiction over tribes, individual Indians, their land and resources.
The BIA has evolved dramatically over the last 185 years from an agency implementing past
policies of allotment and assimilation, to a bureau charged with promoting and supporting Indian
Self-Determination. In addition, several other bureaus and offices within the Department were
created for or have specific duties with respect to fulfilling the trust responsibility, such as the
Bureau of Indian Education, Office of the Assistant Secretary- Indian Affairs, Secretary's
Indian Water Rights Office, Office of the Special Trustee for American Indians, Land Buy-Back
Program for Tribal Nations, Office of Historical Trust Accounting, Office of Natural Resource
Revenue, Office of Appraisal Services, and Office of Minerals Evaluations. All of these
programs support and assist federally recognized tribes in the development of tribal government
programs, building strong tribal economies, and furthering the well-being of Indian people. As
instruments of the United States that make policy affecting Indian tribes and individual Indian
beneficiaries, the Bureau of Land Management, Bureau of Reclamation, Fish & Wildlife Service,
National Park Service, and the Department's other bureaus and offices share the same general
Federal trust responsibility toward tribes and their members.

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In an extended legal opinion regarding the meaning of the trust responsibility, former
Department of the Interior Solicitor Leo M. Krulitz concluded that "[t]he trust responsibility
doctrine imposes fiduciary standards on the conduct of the executive. The government has
fiduciary duties of care and loyalty, to make trust property income productive, to enforce
reasonable claims on behalf of Indians, and to take affirmative action to preserve trust property."
Memorandum from Department of the Interior Solicitor Leo M. Krulitz to Assistant Attorney
General James W. Moorman, at 2 (Nov. 21, 1978). This opinion remains in effect today.
In exercising this broad authority, past Secretaries have acknowledged that the Department's
relationship with Indian tribes and individual Indian beneficiaries is guided by the trust
responsibility and have expressed a paramount commitment to protect their unique rights and
ensure their well-being, while respecting tribal sovereignty. See e.g., Secretary's Order 3317,
Department of the Interior Policy on Consultation with Indian Tribes (Dec. 01, 2011 );
Secretary's Order 317 5, Departmental Responsibilities for Indian Trust Resources
(Nov. 8, 1993); Secretary's Order 3206, American Indian Tribal Rights, Federal Trust
Responsibilities, and the Endangered Species Act (Jun. 5, 1997); Secretary's Order 3215,
Principles for the Discharge of the Secretary's Trust Responsibility (Apr. 28, 2000); Secretary's
Order 3225, Endangered Species Act and Subsistence Uses in Alaska (Jan. 19, 2001).
The Department has also sought to build a strong government-to-government relationship with
Indian tribes. The Department of the Interior Policy on Consultation with Indian Tribes, which
was adopted in December 2011, sets forth standards for engaging with Indian tribes on a
government-to-government basis to ensure that the decisions of the Department consider the
impacts on affected Indian tribes and their members.
Sec. 4 A New Era of Trust. During the last few decades, the trust relationship has evolved.
In the Era of Tribal Self-Determination, the Federal trust responsibility to tribes is often fulfilled
when the Department contracts with tribal governments to provide the Federal services owed
under the trust responsibility. Because tribal governments are more directly accountable to the
people they represent, more aware of the problems facing Indian communities, and more agile in
responding to changes in circumstances, tribal governments can often best meet the needs of
Indian people. In sum, the Federal trust responsibility can often be achieved best by empowering
tribes, through legislative authorization and adequate funding to provide services that fulfill the
goals of the trust responsibility.
In recent decades, the trust relationship has weathered a difficult period in which Indian tribes
and individual Indians have resorted to litigation asserting that the Department had failed to
fulfill its trust responsibility, mainly with regard to the management and accounting of tribal trust
funds and trust assets. In an historic effort to rebuild the trust relationship with Indian tribes, the
Department recently settled numerous "breach of trust" lawsuits. This includes Cabell v.
Salazar, one of the largest class action suits filed against the United States, and more than 80
cases involving Indian tribes. Resolution of these cases marks a new chapter in the Department's
history and reflects a renewed commitment to moving forward in strengthening the governmentto-government relationship with Indian tribes and improving the trust relationship with tribes and
individual Indian beneficiaries.

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As part of the Cabell Settlement, the Department established a Secretarial Commission on Indian
Trust Administration and Reform in 2009 through Secretary's Order No. 3292. The Commission
issued its final report in December 2013. The report highlighted the significance of the Federal
trust responsibility and made recommendations to the Department on how to further strengthen
the commitment to fulfill the Department's trust obligations. The Commission urged a "renewed
emphasis on the United States' fiduciary obligation" and asserted that this "could correct some
[issues], especially with respect to ensuring that all federal agencies understand their obligations
to abide by and enforce trust duties."
As a response to the Commission's recommendation, this Order hereby sets forth seven guiding
principles for honoring the trust responsibility for the benefit of current and future generations.
Sec. 5 Guiding Principles. Pursuant to the long-standing trust relationship between the United
States, Indian tribes and individual Indian beneficiaries and in furtherance of the United States'
obligation to fulfill the trust responsibility, subject to Section 6 below, all bureaus and offices of
the Department are directed to abide by the following guiding principles consistent with all
applicable laws. Bureaus and offices shall:
Principle 1: Respect tribal sovereignty and self-determination, which includes the right
of Indian tribes to make important decisions about their own best interests.
Principle 2:
Ensure to the maximum extent possible that trust and restricted fee lands,
trust resources, and treaty and similarly recognized rights are protected.
Principle 3: Be responsive and informative in all communications and interactions
with Indian tribes and individual Indian beneficiaries.
Principle 4:

Work in partnership with Indian tribes on mutually beneficial projects.

Principle 5: Work with Indian tribes and individual Indian beneficiaries to avoid or
resolve conflicts to the maximum extent possible in a manner that accommodates and protects
trust and restricted fee lands, trust resources, and treaty and similarly recognized rights.
Principle 6: Work collaboratively and in a timely fashion with Indian tribes and
individual Indian beneficiaries when evaluating requests to take affirmative action to protect trust
and restricted fee lands, trust resources, and treaty and similarly recognized rights.
Principle 7: When circumstances warrant, seek advice from the Office of the Solicitor
to ensure that decisions impacting Indian tribes and/or individual Indian beneficiaries are
consistent with the trust responsibility.

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Sec. 6 Scope and Limitations.
a.
This Order is for guidance purposes only and is adopted pursuant to all applicable
laws and regulations.
b.
This Order does not preempt or modify the Department's statutory mission and
authorities, position in litigation, applicable privilege, or any professional responsibility
obligations of Department employees.
c.
Nothing in this Order shall require additional procedural requirements related to
Departmental actions, activities, or policy initiatives.
d.
Implementation of this Order shall be subject to the availability of resources and
the requirements of the Anti-Deficiency Act.
e.
Should any Indian tribe(s) and the Department agree that greater efficiency in the
implementation of this Order can be achieved, nothing in this Order shall prevent them from
implementing strategies to do so.
f.
This Order is intended to enhance the Department's management of the United
States' trust responsibility. It is not intended to, and does not, create any right to administrative
or judicial review or any legal right or benefit, substantive or procedural, enforceable by a party
against the United States, its agencies, or instrumentalities, its officers or employees, or any other
person.

Sec. 7 Expiration Date. This Order is effective immediately and will remain in effect until it is
incorporated into the Department Manual, or is amended, suspended, or revoked, whichever
occurs first.

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Secretary of the Interior
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