Our country holds forth a system of justice that is blind to all prejudice, when in fact for Indian people it is also a system blind to justice. Take the Supreme Court's recent decision in United States v. Navajo Nation. The Navajo were seeking $600 million in compensation from Peabody Coal Company. Lower courts and an appeals board had awarded it. The Supreme Court accepted an appeal by the Bush administration Justice Department, and proceeded to overturn the rulings for compensation by a 6 - 3 margin. That left the Navajo with nothing in the case except legal bills.
In accepting the appeal last fall, certain conservatives on the court noted ominously that tribal self-determination was at the core of the case. In fact, newspaper accounts held that Justice Antonin Scalia believed if it were not for the larger context of tribal self-determination, the high court would not have heard the case, thereby letting the $600 million judgment stand.
I'll return to all that, but in order to appreciate what has happened we have to consult more than court documents, the Navajo claim, Peabody Coal's counterclaims and the federal government's resistance to opening the floodgates of litigation. We also have to understand the history and character of the stakeholders here "from the inside," or something like it.
The court documents tell a clear story. The Navajo Nation sought to adjust its coal leases in 1984, having determined that its royalties from Peabody's mining proceeds fell well below the legal minimum for coal mined on federal lands. Note that even if this legal minimum had been in effect, Navajo royalties would still have been well below standard market value. Don Hodel, then Secretary of the Interior, the highest authority of the United States government in Native affairs barring the President, colluded with Peabody Coal to make sure the new royalties that would be paid to the Navajo did not exceed the legal minimum. In secret meetings and communications of which the Navajo Nation, Hodel's trustees, were never voluntarily apprised, Peabody prevailed on the Interior Secretary to force negotiations on the Navajo beginning at 12.5 percent royalties - the legal minimum - instead of assigning the 20 percent share suggested by the BIA at Hodel's direction before Peabody could get to him.
This only came to light in the discovery period of the court case the Navajo filed against Interior in 1993, for breach of trust. The $600 million claim represented the difference between a 12.5 percent share in Peabody's gross proceeds, and the 20 percent share recommended by the BIA. The Supreme Court ruled that "However one might appraise the Secretary's intervention in this case," no law is on the books that would justify monetary compensation.
Now, tribes have been swindled since European contact. And throughout human history, different groups of people, often within the same larger grouping, have been glad to swindle their fellow human beings. What's new? We are already used to the fact that tribal self-determination has been grounds for not providing a safety net and social programs on reservations.
The unique twist is to use tribal self-determination as legitimate grounds now for swindling the poorest of the poor.
Charles F. Wilkinson, the fine environmental attorney and author of numerous notable books on Native affairs, has written a book about just that, touching on the very subject of Navajo coal dealings. The book is entitled "Fire on the Plateau." It is in part a detailed account, in memoir form, of one man's adoption by a power structure that had convinced itself it was all for Natives, or at least for the environment including Natives. But Wilkinson learns for himself that it was in essence the fa?ade of a swindle known only to the privileged few.
The book ends movingly, with an account of the atrocious suicide of Wilkinson's emotionally distant, domineering father. Though this gritty ending has stayed with me for years, it took the Supreme Court's decision in United States v. Navajo Nation to suggest that it functions within the book as a kind of memento mori to all individuals and systems who dedicate too much to keeping up a fa?ade over their own acts of plunder. In any case, a Supreme Court that has already disenfranchised the lower middle classes has now given its seal of approval to swindling the poorest of the poor.
Another new element in all this is tribal self-determination as it comes before the court in the context of the federal trust obligation. Here the news could hardly be worse. The court reasoned as if the Navajo were a corporation making its own unfettered decision to accept 12.5 percent of Peabody's gross proceeds, when in fact the Navajo were by law burdened with a trustee working against them. Already given final power of approval over Navajo decisions, Hodel also gave undue advantage in negotiation to an interested party. It's a concept of self-determination that is punitive through and through. As David Lester of the Council of Energy Resource Tribes has noted, Indians should not be deprived of honest police simply because they don't want to live in a police state.
This is madness, but at least it throws down a gauntlet. If tribes do not now know that they must control their own resources in every possible way, from start to finish, with as little help as possible from a government given to plunder, then they will never know. And from this corner, that's as good as the news gets from this criminal court decision.
Rebecca Adamson is president of First Nations Development Institute and a columnist for Indian Country Today.