When conflicts arise over lands that the U.S. Federal Government holds in trust for Indian
people, the government lawyers who represent Indian interests in those conflicts also
represent non-Indian interests. These interests include those of government agencies with
which Indian people are often in conflict.
When a lawyer represents two different people or organizations simultaneously whose
interests clash, or might clash, that lawyer is said to have a “conflict of interest.” Ordinarily,
attorneys must avoid even the appearance of such a conflict.
Interpreting federal statute, however, the Supreme Court ruled that a government attorney
representing Indian interests “cannot follow the fastidious standards of a private fiduciary,
who would breach his duties to his single beneficiary solely by representing potentially
conflicting interests without the beneficiary's consent.” Nevada v. United States, 463 U.S.
110, 127-28 (1983). “Congress chose to do this,” the Court declared, “and it is simply
unrealistic to suggest that the Government may not perform its obligation to represent
Indian tribes in litigation when Congress has obliged it to represent other interests as
To address this issue, President Richard M. Nixon proposed establishing a legal authority
of the government to represent Indian trust interests. Congress has yet to act on this
reasonable proposal, however, and so Indian people often resort to incurring the expense
of using private attorneys to represent their interests in disputes over lands held in trust.
|These contents are for general education
and are not to be construed as legal advice.