The federal trust doctrine developed out of the legal relationship between European sovereigns--and later, the United States government--and American Indian tribes. By signing treaties with Indian tribes, the settler governments entered into an ongoing relationship with sovereign tribal governments. The United States government has a duty to fulfill the promises inherent in these treaties, including the provision of such services as health care to Indian tribes. The trust doctrine embodies these obligations. When Congress legislates with respect to American Indians and Indian tribes for the provision of services, such as the Indian Health Care Improvement Act of 1976 (IHCIA), Congress acts in fulfillment of its historic trust obligations. But the Indian Health Service (IHS) is drastically underfunded. Patients go without critical care. Hospitals cannot keep their doors open. Tribes have sought to enjoin the U.S. government to provide necessary health care under the trust doctrine and the IHCIA. This Comment *1100 analyzes divergent approaches in the Eighth and Ninth Circuit Courts of Appeals regarding the judicial enforceability of federal trust obligations under the IHCIA. This Comment argues that, in recent years, the Supreme Court has interpreted the trust doctrine and its enforceability under statutes too narrowly to be compatible with the trust doctrine's federal common law principles. Finally, this Comment proposes that a broader interpretation of judicially enforceable trust obligations inherent in statutes like the IHCIA would be more faithful to original common law principles, align with human rights and indigenous peoples' rights principles under international law, and initiate long overdue restorative justice for American Indians.
Trust Betrayed: The Reluctance to Recognize Judicially Enforceable Trust Obligations Under the Indian Health Care Improvement Act (IHCIA),
Loy. U. Chi. L. J.
Available at: https://lawecommons.luc.edu/luclj/vol52/iss4/7