Conflicted Justice: The Department of Justice's Conflict of Interest in Representing Native American Tribes


This article is published in the Georgia Law Review, Vol. 37, Summer 2003.


This article addresses an ongoing problem in the area of Indian law. For years, the Native American community has complained of conflicts of interest in the Department of Justice.

The conflict within Justice arises from the federal government's special trust relationship with the Indian tribes. The federal government assumed a special trust relationship with the Indian tribes early in the United States' history, that has developed over time through treaties, statutes and case law. The trust relationship represents an affirmative duty on the part of the United States to protect the tribes, serve their best interests and uphold the other trust duties under a standard of good faith. As trustee, the United States, usually acting through the Department of the Interior, manages a significant portion of tribal land and a great deal of tribal resources. The Department of the Interior retains responsibility for many other federal programs and federal lands. The Department of Justice represents Interior and most other federal agencies in court. Thus, Justice must represent both tribal and non-tribal interests, often involving the same land or within the same case. Indeed, Justice must make litigating decisions in these cases with the knowledge that a position in one case may impact another case.

A private trustee could not function in the manner that Justice functions. Doing so would violate the duty of undivided loyalty required from a trustee. Justice, however, maintains that the duties of a private trustee do not apply to Justice. In doing so, Justice relies on a Supreme Court case, United States v. Nevada, and a 1979 letter from then Attorney General Griffin Bell.

To show the inaccuracies in Justice's position, I examine the underpinnings of Justice's position, beginning with the letter by former Attorney General Griffin Bell and then turning to Nevada v. United States. After also examining the lower courts' interpretation of Nevada, I conclude that Nevada holds simply that when Justice proceeds in the face of congressionally imposed conflicting interests, the doctrine of res judicata still applies to bind the United States and the tribal parties to that litigation.

It may seem that Indian tribes could be adequately compensated for conflicts through money damages. However, due to a pair of Supreme Court cases, breach of trust actions based on conflicts of interest are not viable. In this article, I examine and explain how this avenue of redress is effectively closed to tribes. Thus, I argue the solution to the conflict problem must be found earlier in the decisional process. In order to fully protect Native American rights, any successful solution must address the problems created by the Eleventh Amendment and the rules of preclusion. I therefore recommend the creation of a separate litigating agency outside of Justice and Interior and the adoption of special preclusion rules to govern litigation by Justice as trustee. This combination will provide both procedural and substantive protection to the Native American beneficiaries and will allow the United State to fulfill its role as trustee.


Indigenous, Indian, and Aboriginal Law

Date of this Version

June 2003

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