Vanderbilt Law Review

First Page



"Great nations, like great men, should keep their word."' Justice Black, in his dissent in Federal Power Commission v. Tuscarora Indian Nation, encapsulated the failures of two centuries of the United States' relationship with its native Indians. Since establishing the first tentative treaties of the Revolutionary era, the United States has made many broad promises to the Indians. These promises, detailed first in treaties and later in statutes, drew the government and the Indians into a fiduciary relationship. Although this relationship would have consequences for federal/Indian interactions, raising the level of care with which the government would treat its native beneficiaries, its full potential has remained unrealized.4 In 1960, Justice Black's simple principle fell on deaf ears. Today, courts have the opportunity to listen.

The scope of the federal/Indian fiduciary relationship has escaped precise definition in part because of the elusive nature of all fiduciary interactions. A fiduciary relationship, like that between the federal government and the Indians, usually overlays statutorily regulated ties between parties in trust-based relationships. The fiduciary relationship regulates the manner in which the fiduciary fulfills legal duties to the dependant party, providing a "veil" through which courts view the fiduciary's execution of other, more specific obligations. Because of its lack of independent shape, this notion of heightened responsibility may appear a "concept in search of a principle.' In fact, fiduciary responsibilities require substantive principles, existing only in symbiotic relationship with the firm guidelines of trust, agency, tort and contract law.

This notion, adopted from equity's breach of confidence concerns, boasts broad utilization in modern law. The two basic fiduciary duties, the duty of care and the duty of loyalty, evolved from courts' progressive generalizations of the requirements con- trolling the interactions between certain parties. As courts grew to expect high standards of care and loyalty in specific types of interactions, like those between a doctor and patient or a trustee and beneficiary, they imposed a higher level of responsibility in instances in which the parties, based on the type of relationship entered, would expect such a standard to apply (the archetypal model). Courts soon expanded this notion, attaching fiduciary responsibilities to non-archetypal arrangements in which the purpose of the relationship suggested elements of reliance and high expectations for loyalty and care (the purpose model). Even if a relationship did not fit the archetypal or purpose models, courts often found facts or circumstances that could impose fiduciary responsibilities (the circumstantial model). When a relationship included elements of dominance, influence, vulnerability, trust, or dependency, courts frequently applied fiduciary obligations to the substantive statutory guidelines. The expansions of fiduciary responsibility, however, were not unlimited: a relationship found fiduciary in one respect may not be so characterized in other aspects. In the words of L.S. Sealy, one "cannot assume that what is fiduciary for one purpose is fiduciary for all purposes."