The Dark Side of the ‘Trust’ Relationship and Plenary Power

August 23, 2012

In 1942, the renowned legal scholar Felix Cohen famously wrote about the Spanish origin of Indian rights in the federal Indian law conceptual system of the United States. The two concepts of a “trust relationship” and “plenary power” are aspects of that system that find their origin in domination.

Let us begin with the idea of a “trust,” which is typically and habitually invoked by Indian country, usually without developing a deeper understanding of that concept and its origin historically.

When we follow Cohen’s suggestion and trace the concept of “trust” back to the Spanish context of empire and colonization, a strange thing happens. The context of “trust” is revealed to be one of domination. Evidence of this is found in a book written in 1918 by Manuel Serrano y Sanz, “Origenes de la Dominación Española en América” [“Origins of Spanish Domination in America”].

In his book “Encomienda in New Spain: Forced Native Labor in the Spanish Colonies, 1492-1550,” the esteemed scholar Lesley Byrd Simpson cited “Origenes de la Dominación Español en América.” He quoted the sentence: “Force is not truth or justice, but it is an indispensable element for the propagation of civilization, so that justice and truth may be the base of human societies.” Domination provides the context for interpreting the terms “truth” and “justice” in that era. (e.g., Columbus erected gallows with 13 nooses to hang Indians in the number 13 to correspond to Jesus and the 12 Apostles as a symbol of “justice,” behind which was the presumed “truth” of the Bible and the monarch’s supposed authority from “God”).

The aforementioned quote is an admission that the use of coercion against free and independent peoples, or, in other words, the use of domination, is “indispensable…for the propagation of civilization.” This goes with a definition of “civilization” I have often cited. It is found in Webster’s Third New International Dictionary: “The act of civilizing” especially “the forcing of a particular cultural pattern on a population to whom it is foreign.” Evidence of domination is found in the word “forcing.”

Given the above information, we are able to accurately reframe Cohen’s tracing of the origin of U.S. federal Indian law to Spanish law. In other words, domination is the wider context of the concept of a “trust relationship” as found in U.S. federal Indian law. One source of U.S. federal Indian law is traced back to Spanish domination in America, a key aspect of which is found in the idea of the “trust” that the Spanish Crown and Spanish Empire placed in its agents of colonization (e.g. conquistadors and priests).

The concept and dominating institution of the Spanish Encomienda is another example. Take, for instance, the Cedula of King Philip II of Spain issued in 1571: “The encomienda is a right granted by Royal Grace to the deserving of the Indies to receive and collect for themselves the tributes of the Indians that shall be given them in trust, for their life and the life of one heir…” Through dominating force the Indians were to be “taught” to pay, pray, and obey (tribute, conversion, and subjection).

The Spaniards were given command over Indians; in other words, Indians were given to the Spaniards who were authorized to hold the Indians “in trust,” and they were given the “charge” of “looking after the spiritual and temporal welfare of the Indians” being held under their dominating control.

Behind the dehumanizing Spanish encomienda system was the view that the Indians belonged to the Spanish Crown, as “free subjects of the crown or King.” Given that the word ‘subject’ traces to subjectum (‘to throw under’) in Latin, and that the dominance of royal power is the context of “a subject,” then a “free subject” is a contradiction in terms, for it translates to “free under domination.”

The brutal Spanish encomienda system can be accurately thought of as a placing “Indians into royal trust process” (rather than an “Indian land into trust process”) under the dominance of the crown. Today’s process of placing Indian land into federal trust in the U.S. is premised on the idea that we as Indians were, at some point in the past, forced out of our original free and independent existence. The result is a presumed federal government control or dominance over our lives. Such federal control or domination is typically called “the plenary power of the United States” exercised as a trust relationship.

The phrase “free subjects of the king” is analogized in today’s federal Indian law conceptual system: “free under the plenary power of Congress,” “free under the authority of the United States,” or “free under the U.S. Constitution.” The word “under” indicates a “sub” status for our originally free and independent nations and peoples, which invokes the domination/ subordination structure of the so-called federal “trust relationship” with our nations and peoples.

Steven Newcomb (Shawnee/Lenape) is co-founder and co-director of the Indigenous Law Institute, author of “Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery” (Fulcrum, 2008), and the Kumeyaay and Indigenous Research Coordinator for the Sycuan Band of the Kumeyaay Nation.