The schoolchildren of Oregon in the year 2126 are, in every relevant legal sense, parties to a contract whose terms were settled before any of them will be born. The Oregon Admissions Act of 1859 conveyed two sections of every township to the new state for the support of common schools, and the State of Oregon, in accepting that grant on those terms, accepted the duties of a trustee — to a beneficiary class consisting of the schoolchildren of Oregon, present and future, in perpetuity. The duties run forward through every generation of state officials who will ever hold authority over the Common School Fund and the lands and proceeds that constitute it. The beneficiaries to whom the duties are owed cannot, however, walk into the Oregon State Land Board’s quarterly meeting and present a sworn affidavit about how the trust ought to be managed. The schoolchildren of 2126 have no lawyer of record. They have no testimony to offer. They have no organized constituency, no political action committee, no Twitter presence, no friends-and-family op-ed network. They will not be born for another century. They are, in the strictest legal sense, the parties most directly interested in how the trust is managed today, and they are the parties least able to speak for themselves.
This is the central structural problem of any perpetual fiduciary obligation, and the school trust lands have been running the experiment on it for two and a half centuries. The constitutional, doctrinal, and moral question is the same one in every variant: how do trustees honor an obligation owed to beneficiaries who cannot be in the room? The school-trust record is the longest body of evidence the country has on the question, and the answer it offers is sobering. The trust has, in most jurisdictions, drifted toward serving the interests of the parties who can be in the room. The pattern has recurred under every political party, every economic condition, and every variant of administrative structure. It is not the product of bad faith; it is the structural consequence of asking a sovereign trustee whose officials face the next election to represent beneficiaries who have not yet been conceived.
This essay is about that structural problem. It tries to name what the law has done about it, what the law has not been able to do about it, and what stands to be done.
The standing problem
The doctrinal device by which American courts have historically determined whether a particular party may enforce a trust is the doctrine of standing. The federal version of the doctrine, articulated most recently in the line running through Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), requires that a plaintiff allege a concrete and particular personal injury, traceable to the defendant’s conduct, redressable by the court. The Supreme Court applied a version of that requirement to the school-trust context in ASARCO Inc. v. Kadish, 490 U.S. 605 (1989), holding that taxpayer and education-association plaintiffs alleging that an Arizona below-market mineral-leasing statute had “deprived the school trust funds of millions of dollars” did not assert “the kind of particular, direct, and concrete personal injury” that is necessary to confer standing to sue in federal court. ASARCO, 490 U.S. at 615. The state-court taxpayer plaintiffs had been deemed to have standing under Arizona law, and the federal Court left the merits ruling in place. But the standing holding has become a recurring obstacle to beneficiary-side enforcement in federal forums: the most natural plaintiffs — children, parents, taxpayers concerned that the trust is being drained — face a doctrinal barrier specifically calibrated against the kind of diffuse, future-oriented injury the trust is designed to prevent.
The state courts have taken a noticeably different approach. The Utah Supreme Court in National Parks and Conservation Association v. Board of State Lands, 869 P.2d 909 (Utah 1993), held that the National Parks and Conservation Association had standing to sue because the case raised “issues of significant public importance.” The Idaho Supreme Court in Idaho Watersheds Project v. State Board of Land Commissioners, 133 Idaho 64, 982 P.2d 358 (1999), held that beneficiary-side plaintiffs could sue to enforce the trust, rejecting the state’s argument that only the Attorney General could pursue such claims. The federal district court in Branson School District RE-82 v. Romer, 958 F. Supp. 1501 (D. Colo. 1997), confirmed beneficiary standing in the Colorado school-trust context — school districts and parents, as the direct beneficiaries of the trust, may sue to enforce it.
In Oregon, the standing question has been pressed in the current litigation under the four-case docket alongside the merits arguments. The State of Oregon has, in successive motions to dismiss filed in 2021 and 2023, argued that the named plaintiffs — individual parents and the advocacy organization — lacked the kind of concrete personal injury required to confer standing under Oregon law. The trial courts have not uniformly accepted those arguments; the merits of the school-trust claims have, in some respects, survived the standing inquiry, allowing the litigation to proceed past the threshold motion stage. [CITE PENDING — Oregon trial-court rulings on standing, in particular the 2024–2025 orders in 24CV38372 and predecessor cases; the procedural posture is mixed and warrants verification against the actual rulings.] The State of Montana faced an analogous challenge in Advocates for School Trust Lands v. State and other Montana matters; the Montana courts, working from a body of state-law doctrine that includes Pettibone (1985) and Friends of the Wild Swan v. Department of Natural Resources and Conservation, 2005 MT 351, 330 Mont. 186, have generally been more receptive to beneficiary-side standing than the federal courts have. [CITE PENDING — specific Montana docket numbers and rulings.]
What the standing record across the trust states adds up to is a doctrinal split. The federal forum, under ASARCO and Lujan, makes beneficiary-side enforcement difficult. The state forum, under NPCA, Idaho Watersheds Project, Branson, and the analogous cases in Colorado, Washington, and South Dakota, generally permits it. The practical consequence is that the school trust lands cases live in the state courts, by design, and that the federal Article III standing doctrine operates as a one-way ratchet excluding the most natural plaintiffs from the most authoritative forum.
The public trust analogy
A second body of doctrine sits adjacent to the school-trust doctrine and is sometimes invoked, sometimes distinguished, sometimes confused with it. That is the public trust doctrine, the body of common-law principles holding that certain resources — the navigable waters, the foreshore, the air, the wildlife — are held by the state in trust for the public, with the public as both beneficiary and, in some formulations, as having direct standing to enforce. The doctrine’s origins run back to Roman law and were articulated for American purposes in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), where the U.S. Supreme Court held that the State of Illinois could not lawfully convey the bed of Lake Michigan, in fee simple, to a private railroad — because the state held the lakebed in trust for the public, and the trust could not be alienated to a private party.
The public trust doctrine has been pressed in more recent litigation as a vehicle for environmental claims, particularly in Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020), where a group of youth plaintiffs sued the federal government for failing to protect the atmosphere as a public trust resource on behalf of future generations. The Ninth Circuit dismissed the case on standing and redressability grounds, but the doctrinal argument — that the state holds certain resources in trust for the public, including future generations, and that the trust is enforceable — has continued to develop in lower-court litigation. [CITE PENDING — Juliana circuit opinion and related state-court public-trust climate cases.]
The school-trust doctrine is not the same as the public-trust doctrine, and the differences matter for the present analysis. The school trust is a private-charitable-trust analogue, with an identified beneficiary (the schools, or the schoolchildren) and an explicit trust instrument (the federal enabling act). The public trust doctrine is a common-law constraint on sovereign authority over certain resources, with a more diffuse beneficiary (the public) and a more contested doctrinal foundation. But the two doctrines share a structural feature that is central to the present essay: both contemplate that the state holds something — land, water, mineral rights, an atmospheric stability margin — under a legal obligation that runs to beneficiaries who, in significant part, are not yet in being.
The school-trust cases have been more successful, doctrinally, than the public-trust climate cases for reasons that are themselves instructive. The school trust has a written instrument; the public trust has a common-law tradition. The school trust has identified beneficiaries; the public trust has the diffuse public. The school trust has a measurable corpus; the public trust has resources whose valuation is contested. The differences explain why the doctrinal scaffolding of the school trust — Vincennes, Lassen, Andrus, ASARCO, Pettibone, Skamania, Ebke, NPCA, Idaho Watersheds Project, Branson — is far better developed than the analogous scaffolding for the public-trust doctrine. They also explain why the school-trust experience is, for the architects of AI-era forever-trusts who want explicit instruments and identified beneficiaries, more directly applicable than the public-trust line.
The pattern of forgetting
The deeper historical pattern, visible across the school-trust record and across the broader public-trust record, is the pattern by which trustees, generation by generation, grow comfortable assuming the beneficiaries will not notice. The pattern has nothing to do with any individual trustee’s character. It is the structural consequence of running a long-horizon institution under short-horizon political incentives.
A specific feature of the pattern is worth naming because it surfaces in nearly every trust state’s record. The trust is created with a clear and identified beneficiary. The first generation of trustees administers the trust with reasonable fidelity, often because the beneficiaries’ representatives — the founders, the original advocates, the institutional memory of the grant — are still present. By the second generation, the institutional memory has begun to fade. By the third, the lands are being treated as ordinary public lands with a slight peculiarity of accounting. By the fourth, the trust accounting has been folded into the general fund in some quiet bookkeeping move, the per-pupil distribution has become a minor budget line, and the structural framing has shifted from “the children own this land; we are managing it for them” to “the state owns this land; the schools are one of many things it pays for.” Justice Nelson’s Darkenwald dissent named the consequence: “It is, indeed, shocking that this Court now approves the commingling of school trust distributable revenues with the General fund with a ‘no harm, no foul’ wink of the eye. It is equally indefensible that the Court justifies a ‘scheme’ which robs Peter (future generations of school children) to pay Paul (present day school children) and holds that scheme is constitutional.” Darkenwald, slip op. at 71 [CITE PENDING].
The pattern recurs because the structural pressure recurs. The trustee — the state, the land board, the legislature — is also the body whose officers face the next election. The beneficiaries who can vote (parents, teachers, school administrators) are mostly satisfied if the schools are funded; they do not generally distinguish among funding sources, and they have no direct visibility into the trust’s accounting. The beneficiaries who cannot vote (children, future children) have no representative in the room. The party with the loudest voice in any given budget cycle is the party whose interest is in extracting value from the trust for some present purpose — the rancher with the grazing lease, the timber community whose mill depends on the contract, the legislator whose general-fund math improves when trust revenue rises and offsetting appropriations fall. The trustee, balancing among the parties present, drifts.
The drift is invisible in any given year because the budget line never changes. It is visible only on the multi-decade horizon, when the corpus that should have grown has not grown, the per-pupil contribution that should have compounded has not compounded, and the trust that was supposed to be perpetual has been quietly converted into a state savings account. The Utah-Oregon contrast described in earlier Reading Wing essays — Utah’s permanent fund growing from $41 million in 1990 to nearly $4 billion today, Oregon’s per-pupil distribution running an order of magnitude smaller despite a similar grant of similar acreage — is the visible end of a process that operated invisibly for decades. The pattern is not a Utah problem or an Oregon problem. It is the ordinary problem of any trustee whose beneficiaries cannot speak.
The structural claim of the unborn
The moral and doctrinal question on which the school trust ultimately rests is whether beneficiaries who do not yet exist have a legitimate structural claim against the trustee, and the answer the law has consistently given is yes. The federal enabling acts and the state constitutional provisions that accepted them name the beneficiaries as the schoolchildren — present and future, named and unnamed. The trust is perpetual, not generational; Andrus and Kanaly are explicit on the point. The duties of loyalty, prudence, productivity, impartiality, and accounting that the Restatement and the Uniform Trust Code codify are owed to all beneficiaries, including those of future generations. The duty of impartiality, in particular — Restatement (Third) §79 and UTC §803 — requires the trustee to give due regard to the interests of all beneficiaries, including beneficiaries of different generations. The intergenerational equity principle is not a contemporary policy preference grafted onto an older doctrine. It is the doctrinal core of every perpetual trust ever enforced in the Anglo-American legal tradition.
The framing matters because the school-trust position is sometimes mischaracterized as resting on a contested theory of “rights of the unborn.” It does not. The school-trust beneficiaries are not asserting that the unborn have a free-standing right; they are asserting that the trust, having been created in 1859 (or in 1894, or in any other admission year), has named them as the beneficiaries to whom its duties are owed, and that the trustee’s obligation runs forward to whoever the schoolchildren of any given year happen to be. The structural claim is the trust’s claim. It does not require any particular metaphysical commitment about the moral status of persons not yet conceived. It requires only the recognition that the trust instrument identifies a beneficiary class extending indefinitely into the future and that the trustee accepted the duties on those terms.
This is the framing the courts have used. Andrus speaks of a “binding and perpetual obligation.” Kanaly describes “a special, permanent and perpetual trust.” Cooper v. Roberts refers to the grant as carrying “the unalterable condition” of trust for schools. The language is institutional, not metaphysical. The duty runs because the trust runs. The fact that some of the beneficiaries are not yet in being at the time of any given administrative action does not weaken the duty; it is built into the structure of the duty itself.
Standing on behalf of the unborn
The practical question that follows from the structural claim is who, in the contemporary forum, may stand for the beneficiaries who cannot stand for themselves. The school-trust answer, developed across two centuries of state-court litigation, is a layered one.
The first layer is the state itself, in its capacity as trustee. The trustee is, in the first instance, the party charged with representing the beneficiaries’ interests, and the trust functions properly when the trustee internalizes that obligation. The Utah experience after 1994 — SITLA acting as a dedicated fiduciary, SITFO operating the corpus as a professional endowment — is the demonstration that a trustee can in fact represent the absent beneficiaries when the institutional architecture is built to make it do so.
The second layer is the Attorney General. In several jurisdictions the AG has been treated as the proper enforcer of charitable and public trusts on behalf of the beneficiaries. Whether that view holds in any given state depends on state law. Where it holds, it provides a backstop against trustee drift; where it does not, the backstop is missing.
The third layer is the beneficiaries’ direct representatives — school districts, parents, education associations, and the advocacy organizations that have organized around trust enforcement. The state-court standing rules in NPCA, Idaho Watersheds Project, Branson, and the analogous cases have generally permitted these parties to sue. The state-court doctrine, in this respect, is the doctrinal mechanism by which the unborn beneficiaries acquire a voice in the present forum. The plaintiffs in those cases are not the unborn beneficiaries themselves; they are present-day parties whose stake in the trust — as schools, parents, citizens, or beneficiary-aligned organizations — is sufficient to invoke the court’s enforcement jurisdiction. They sue on the trust’s behalf, and the trust’s behalf includes the beneficiaries of every generation to whom the duties are owed.
The fourth layer, more contested but doctrinally arriving, is the use of class-action and parens-patriae devices to represent future beneficiaries directly. The doctrinal apparatus is not yet fully developed in the school-trust context, and the Library makes no claim about how it should develop. The structural fact is that the present forum has, across two centuries, generally found ways — through state-court standing rules, through Attorney General enforcement, through beneficiary-side advocacy organizations — to give the unborn a representative voice. The mechanism varies. The principle does not.
The Eighth Anchor frame
What the school-trust experience offers the architects of AI-era forever-institutions, on the question of beneficiaries who cannot speak, is a body of evidence that the problem is solvable in principle but that solving it requires explicit institutional design. The trust instrument must name the beneficiary class with enough precision that the duty can be enforced. The standing rules in the forum where the trust is litigated must permit beneficiary-aligned plaintiffs to sue without requiring an injury-in-fact theory calibrated against the parties whose injuries are diffuse and prospective. The trustee must be structured so that its primary loyalty runs to the named beneficiaries and not to the general-purpose interests of the body in which it sits. And an organized constituency, generation after generation, must be willing to do the work of standing in for the beneficiaries who cannot stand for themselves.
These are demanding institutional requirements, and the school-trust record shows how easily any of them can be allowed to slip. The American school trust nonetheless represents the most-tested working specimen the country has of an institution built to defend the interests of beneficiaries who cannot be in the room. The duties are well-articulated. The doctrinal scaffolding is robust. The cases have, on the whole, held the line. What has so often failed is the slower work of institutional maintenance — the constituency, the architecture, the discipline of accounting. The Eighth Anchor argument addressed in the wider Library is that those failures are recoverable, that the design choices behind them are now well enough understood to be improved upon, and that the new forever-institutions arriving in the AI era will be making the same choices, on the same questions, under much harder conditions.
The schoolchildren of 2126 cannot speak. The trust speaks for them. Whether the trust will continue to do so is a question of design, of institutional discipline, and of the willingness of present-day parties to honor an obligation whose beneficiaries will never thank them. The American constitutional tradition has been answering that question, in the school-lands context, for a quarter of a millennium. The answer it offers is partial, complicated, and informative. The Library exists to make sure the answer is available, in full, to the institutions arriving now who will need it most.
Citations
Cases
- Trustees of Vincennes University v. Indiana, 55 U.S. (14 How.) 268 (1852).
- Cooper v. Roberts, 59 U.S. (18 How.) 173 (1855).
- Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892).
- Lassen v. Arizona, 385 U.S. 458 (1967).
- Andrus v. Utah, 446 U.S. 500 (1980).
- ASARCO Inc. v. Kadish, 490 U.S. 605 (1989).
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
- Department of State Lands v. Pettibone, 702 P.2d 948 (Mont. 1985).
- County of Skamania v. State, 102 Wash. 2d 127, 685 P.2d 576 (1984).
- State ex rel. Ebke v. Board of Educational Lands and Funds, 154 Neb. 244, 47 N.W.2d 520 (1951).
- National Parks and Conservation Association v. Board of State Lands, 869 P.2d 909 (Utah 1993).
- Idaho Watersheds Project v. State Board of Land Commissioners, 133 Idaho 64, 982 P.2d 358 (1999).
- Branson School District RE-82 v. Romer, 958 F. Supp. 1501 (D. Colo. 1997).
- Kanaly v. State, 368 N.W.2d 819 (S.D. 1985).
- Montanans for the Responsible Use of the School Trust v. Darkenwald, 2005 MT 190; 328 Mont. 105.
- Friends of the Wild Swan v. Department of Natural Resources and Conservation, 2005 MT 351, 330 Mont. 186.
- Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).
Statutes and codifications
- Oregon Admissions Act, 11 Stat. 383 (1859).
- Restatement (Third) of Trusts (Am. Law Inst. 2003–2012), §§77–83.
- Uniform Trust Code (Nat’l Conf. of Comm’rs on Unif. State Laws 2000, as amended), §§802–813.
[CITE PENDING] items
- Oregon trial-court rulings on standing in 24CV38372 and predecessor cases — verify the precise procedural posture and the exact language of the standing rulings.
- Montana docket numbers and standing rulings in Advocates for School Trust Lands v. State and analogous matters.
- Darkenwald slip-opinion pagination for the Justice Nelson dissent passages quoted.
- Juliana v. United States and related state-court public-trust climate cases — verify procedural posture and characterize doctrinal contribution carefully.
Reading Wing, Court Room. America’s School Trust Library at schooltrusts.net.
