59. Guidance Concerning the Conduct of Indian Litigation—The
"Andrus Letter"
Honorable Cecil D. Andrus
Secretary of Interior
Washington, D.C.
Dear Mr. Secretary:
As you know, the Department of Justice has long represented the
United States in litigation for the purpose of protecting Indian
property rights secured by statutes or treaties. This has been and
will continue to be an important function of this Department, and
I would like to set forth my understanding of the legal principles
governing its conduct. In fulfillment of the special
relationship contemplated in the Constitution between the Federal
Government and the Indian tribes, the Congress has enacted numerous
laws and the Senate has ratified numerous treaties for the benefit
and protection of Indian tribes and individuals, their property and
their way of life. Where these measures require implementation by
the Executive Branch, the administrative responsibility typically
resides with the Secretary of the Interior. 43 U.S.C. §
1457(10). The Attorney General is in turn responsible for the
conduct, on behalf of the United States, of litigation arising
under these statutes and treaties. This obligation in Indian cases
is but one aspect—albeit and important one—of the Attorney
General's statutory responsibility for the conduct of litigation in
which the United States or an agency or officer thereof is a party
or is interested. 28 U.S.C. §§ 516, 519. The Secretary
of the Interior and the Attorney General perform their duties here,
as in all other areas, under the superintendence of the President.
We are the President's agents in fulfilling his constitutional duty
to take care that the laws be faithfully executed. Where a
particular statute, treaty, or Executive Order manifests a purpose
to benefit all Indians or a tribe or individual Indians or to
protect their property, it is the obligation of the responsible
Executive Branch officials to give full effect to that purpose. In
your role as Secretary of the Interior, you are charged with
administering most of the laws and treaties applying to Indians and
are often in a policy formulating role with regard thereto. And
where litigation is concerned, it is the duty of the Attorney
General to ensure that the interest of the United States in
accomplishing the congressional or executive purpose is fully
presented in court. The Executive and Judicial Branches have
inferred in many laws extending federal protection to Indian
property rights in the intent that the Executive act as a fiduciary
in administering and enforcing these measures. Where applicable law
imposes such standards of care, faithful execution of the law of
course requires the Executive to adhere to those standards. Thus,
it in no way diminishes the central importance of our respective
functions to acknowledge that they find their source in specific
statutes, treaties, and Executive Orders or to recognize that they
are to be performed with the same faithfulness to legislative and
executive purpose as are the obligations devolving upon this branch
of the federal establishment generally. A significant portion
of the litigation with which we are here concerned relates to
property rights reserved to a tribe by treaty or in the creation of
a reservation or property which Congress has directed be held in
trust, managed, or restricted for the benefit of a tribe or
individual Indian. When the Attorney General brings an action on
behalf of the United States against private individuals or public
bodies to protect these rights from encroachment, he vindicates not
only the property interests of the tribe or individual Indian, as
they may appear under law to the United States, but also the
important governmental interest in ensuring that rights guaranteed
to Indians under federal laws and treaties are fully effective.
There is no disabling conflict between the performance of
these duties and the obligations of the Federal Government to all
people of the Nation. This functional thesis upon which our form of
government is premised—the Separation of Powers—pre-supposes
that the people as a whole benefit when the Executive Branch
enforces the laws enacted, and protects Indian property rights
recognized in treaty commitments ratified, by a coordinate branch.
The fact that an identifiable class realizes tangible benefits from
litigation brought by the Federal Government does not distinguish
Indian cases from many civil rights, labor, and other cases. Just
as we go to court to enforce the laws designed to protect
minorities from discrimination or disenfranchisement by the
majority, we must litigate when necessary to protect rights secured
to Indians without reference to whether any present majority of the
citizenry would profit from, or otherwise embrace, that action.
It is important to emphasize, however, that the Attorney
General is attorney for the United States in these cases, not a
particular tribe or individual Indian. Thus, in a case involving
property held in trust for a tribe, the Attorney General is
attorney for the United States as "trustee," not the "beneficiary."
He is not obliged to adopt any position favored by a tribe in a
particular case, but must instead make his own independent
evaluation of the law and facts in determining whether a proposed
claim or defense, or argument in support thereof, is sufficiently
meritorious to warrant its presentation. This is the same function
the Attorney General performs in all cases involving the United
States; it is a function that arises from a duty both to the courts
and to all those against whom the Government brings its
considerable litigating resources. The litigating position
adopted by the Attorney General on behalf of the United States may
affect your administrative and policy-making functions.
Accordingly, with respect to all litigation in which the Attorney
General represents the United States in protecting Indian property
would expect to receive—and would most carefully consider—the
advice of your Department, possessing as it does the primary policy
responsibility in Indian matters. Where there are other
statutory obligations imposed on the Executive in a particular case
aside from those affecting Indians, faithful execution of the laws
require the Attorney General to resolve these competing or
over-lapping interests to arrive at a single position of the United
States. In arriving at a single position, however, we must also
take into account the rule of construction now firmly established
that Congress' actions toward Indians are to be interpreted in
light of the especial relationship and special responsibilities of
the government toward Indians. And, finally, the President's
duty faithfully to execute existing law does not preclude him from
recommending legislative changes in fulfillment of his
constitutional duty to propose to the Congress measures he believes
necessary and expedient. These measures may—indeed must—be
framed with the interest of the Nation as a whole in mind. In so
doing, the President has the constitutional authority to call on
either-of-us for our views on legislation to change existing law
notwithstanding the duty to execute the law as it now stands.
I look forward to close cooperation between our two Departments in
these matters.
Yours sincerely,
Griffin B. Bell
Attorney General
[cited in
USAM 5-14.130]
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