As part of its more general trust responsibilities, the Federal government has followed a long-standing policy of promoting tribal self-government - both by protecting tribes from state encroachment into tribal affairs and by supporting the development and authority of tribal institutions. The United States brings suits to promote that policy and also participates as amicus curiae in cases involving tribal self-government. In treaties, statutes, and executive orders, the Indian tribes have reserved or secured land, natural resources, water, and important hunting and fishing and other rights. The Department of Justice represents the Federal government in litigation to secure or protect these treaty and trust assets.
Office of the Solicitor General
The major function of the Solicitor General's Office is to supervise and conduct government litigation in the United States Supreme Court. Virtually all such litigation is channeled through the Office of the Solicitor General and is actively conducted by the Office. The United States is involved in about two-thirds of all the cases the U.S. Supreme Court decides on the merits each year. The Solicitor General determines the cases in which Supreme Court review will be sought by the government and the positions the government will take before the Court. The Office's staff attorneys participate in preparing the petitions, briefs, and other papers filed by the government in its Supreme Court litigation. Another function of the Office is to review all cases decided adversely to the government in the lower courts to determine whether they should be appealed and, if so, what position should be taken. The Solicitor General also determines whether the government will participate as an amicus curiae, or intervene, in cases in any appellate court.
Environment and Natural Resources Division
The Environment and Natural Resources Division's Indian Resources Section litigates on behalf of federal agencies when they are protecting the rights and resources of federally recognized Indian Tribes and their members. These suits typically include establishing water rights, establishing and protecting hunting and fishing rights, collecting damages for trespass on Indian lands, and establishing reservation boundaries and rights to land. The Indian Resources Section also devotes approximately half of its efforts toward defending federal statutes, programs, and decisions intended to benefit Indians and Tribes. The litigation is of vital interest to the Indians and helps to fulfill an important responsibility of the federal government. The Division's Natural Resources Section also defends claims asserted by Indian Tribes against the United States on grounds that the United States has failed to live up to its obligations to the tribes. The main federal agency that the Division represents in connection with this work is the Bureau of Indian Affairs.
Other DOJ Components
Questions relating to treaty rights, trust obligations, and Indian law arise within nearly every litigating component's work. For example, within the Civil Division, the Torts branch defends suits against tribal employees who carry out federal responsibilities under ISDEA contracts or law enforcement agreements pursuant to statutes which extends Federal Tort Claims Act (FTCA) coverage to those activities. The Federal Programs Branch defends non-FTCA suits against the BIA and IHS, which normally arise in the context of their work in Indian country. The Tax Division represents the United States in suits where Indian Tribes or their members claim that treaty rights, trust obligations, or general principles of Indian law affect their federal tax liabilities. And, of course, the Civil Rights Division brings suits to vindicate tribal members' federal civil rights. The Office of Tribal Justice helps to coordinate consistent policy and legal positions among these many components whose work affects Indian Tribes and their members.
Visit the OTJ Archive for legislation regarding the Johnson Act