Critical Race Theory and the Trust Responsibility

Last September, former President Donald J. Trump signed an executive order, ironically titled “Combating Race and Sex Stereotyping,” that prohibited the inclusion of critical race theory and implicit bias in federal trainings. The order deemed statements such as “racism ‘is interwoven into every fabric of America’” as both harmful and inappropriate in federal trainings.

The Office of Management and Budget also issued a memorandum stating that anti-racism trainings are “divisive, un-American propaganda.” With the executive order and memorandum in place, federal agencies were required to suspend or cancel funding for federal contractors that use federal funds to support trainings covering the topics outlined in the order.

The impact of these actions was immediate. Events on gender diversity and Hispanic heritage, among others, were canceled. Stanford University issued a checklist for its employees to evaluate whether diversity training materials were impacted—and prohibited—by the executive order.

A variety of organizations issued statements opposing the Trump Administration’s actions, including the deans at University of California law schools and members of the history department at the University of North Carolina, Chapel Hill. A group of race theory scholars published a response that both condemned the attempt to stifle discussions of race and racism and highlighted the Trump Administration’s conflation of critical race theory with diversity trainings as “an example of the profound ignorance the current Administration has as it pertains to studying and understanding race in the United States.”

Legislators including U.S. Senator Cory Booker (D-N.J.) also expressed concern that the order would chill protected speech and requested that the Senate Judiciary Committee convene a hearing to assess the constitutionality of the prohibitions.

Missing from these and many other statements against the critical race theory ban is the ban’s impact on the relationships between Tribes and the federal government. Tribal sovereignty and the federal Indian trust responsibility were also absent from the Trump Administration’s analysis on the perceived harms of critical race theory and racial bias training.

Challenges to critical race theory and implicit bias trainings fail to consider the essential value of such trainings on federal-Tribal relations and the federal Indian trust responsibility.

The Bureau of Indian Affairs describes the trust responsibility as “a legally enforceable fiduciary obligation on the part of the United States to protect Tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages.” This responsibility is based on history, treaties, case law, and legislation.

As the U.S. Supreme Court stated in Seminole Nation v. United States, when carrying out treaty obligations with tribes, the federal government “is something more than a mere contracting party.” Instead, under a “humane and self-imposed policy which has found expression in many acts of Congress and numerous decisions of this Court,” the federal government “has charged itself with moral obligations of the highest responsibility and trust.”

The trust responsibility therefore encompasses both a fiduciary relationship and a moral one.

To establish whether there has been a breach of the fiduciary aspect of the trust responsibility, federal courts require that breach of trust claims include both express statutory language supporting a fiduciary relationship as well as comprehensive federal control and supervision of the trust. Unfortunately, as one federal district court recently concluded, “the United States has mismanaged Indian trusts for nearly as long as it has been trustee.” As a result of this mismanagement, Tribes and their members have brought suit, asserting breaches of trust and winning billions of dollars in settlements.

But what of the rest of the trust responsibility—the moral obligation?

As with the chronic mismanagement of fiduciary responsibilities to Tribes, here too, the federal government has failed. The existing legal framework fails to offer a meaningful mechanism to adjudicate instances of federal failings of its trust responsibility when the United States government reneges on its moral responsibilities.

Perhaps one step that the federal government can take in meeting its moral obligation under the trust responsibility to Tribes is ensuring the inclusion of Tribal critical race theory in federal trainings, providing additional education to those responsible for developing regulations and policies affecting Tribal communities.

In 2005, Professor Bryan McKinley Jones Brayboy (Lumbee) proposed a nine-tenet framework for Tribal critical race theory, or TribalCrit. These tenets acknowledge both colonization and white supremacy as pervasive across federal policies related to Indigenous peoples. TribalCrit also centers Tribal sovereignty and cultures as essential to changing how federal policies are oriented.

As Professor Brayboy writes, TribalCrit “is potentially a better theoretical lens through which to describe the lived experiences of Tribal peoples.” Deploying a TribalCrit lens can facilitate “a better understanding of the needs of Indigenous communities” and help illuminate the institutional and societal changes required to implement programs that actually benefit Indigenous communities. This theoretical framework is a tool that regulators and policymakers can embrace to “analyze the problems encountered by American Indians” thoroughly and effectively—which, in turn, promotes a more morally responsible way of governing of Tribal peoples.

Between 2013 and 2017, I served as a faculty member for the Working Effectively with Tribal Governments course at the Centers for Disease Control and Prevention alongside Tribal public health practitioners. The curriculum, developed almost exclusively by Tribal members, incorporated many of the tenets of Professor Brayboy’s TribalCrit. How could such a curriculum not acknowledge colonization, racism, and genocide as being historical and modern anchors in federal policies related to Tribes, American Indians, and Alaska Natives?

In December 2020, a federal district court judge enjoined the executive order’s ban following a complaint filed by The Diversity Center and other LGBTQ rights organizations, which argued that the ban was unconstitutional. More recently, President Joseph R. Biden reversed President Trump’s executive order on his first day in office, signing an order of his own. In response, conservative organizations have threatened to challenge President Biden’s executive order in court, and some commentators have questioned the value of critical race theory at all. Should such legal challenges gain traction, I hope that Tribes and the federal trust responsibility are not again omitted when assessing the impact of a critical race theory ban.

Tribal critical race theory is not only an important component of federal trainings on Tribes and Indigenous peoples but is also essential to substantive federal policies and regulations. Embracing Tribal critical race theory is essential to prevent continuing harm to Tribal sovereignty and Indigenous peoples by federal actors. It is crucial to the federal government’s trust responsibility to Tribes.

Aila Hoss is an assistant professor at the University of Tulsa College of Law’s Native American Law Center.