WASHINGTON - The U.S. Supreme Court issued rulings in two cases on March 4, one in favor of the White Mountain Apache Tribe and one against the Navajo Nation.
Both deal with the question of whether a federal law, different in each case, defines a fiduciary duty on the part of the United States toward the tribe. If so, the tribe is entitled to sue the government for damages based on the breach of that responsibility.
White Mountain Apache: The government is liable
In United States v. White Mountain Apache Tribe, the Court split five to four in its decision that a 1960 law, which transferred an old army post (later a BIA school) in trust to the tribe, creates an obligation by the federal government to repair and preserve its buildings.
In the majority opinion, Justice David Souter writes that the 1960 Act "permits a fair inference that the Government is subject to duties as a trustee and liable in damages for breach."
The liability hinges on language in the statute which says the property is "subject to the right of the Secretary of the Interior to use any part of the land and improvements for administrative or school purposes."
The Court reasons that since the property is subject to the Government's actual use, the Government retains control, and "elementary trust law, after all, confirms the commonsense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch."
Justice Clarence Thomas writes the dissenting opinion that represents the high court's most conservative members: Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Anthony Kennedy. The dissent says that the Government's level of control over the property is not sufficient to create a fiduciary duty, since the 1960 law doesn't actually assign to the United States any management or administrative tasks.
A narrow and unique ruling
Tracy Labin, director of the Tribal Supreme Court Project at the Native American Rights Fund in Washington, wrote a friend-of-the-court brief supporting the White Mountain Apache tribe. Labin says the Court issued a narrow ruling concerning a unique statute.
"The 1960 Act was a specific act that placed a particular section of property in trust for the White Mountain Apache Tribe and then said that the United States could use portions of that property to run an Indian school."
Even though it's narrow, she says the Court's decision nicely reaffirms the Government's trust responsibility to Indian tribes.
"It spoke more clearly on the importance of the trust relationship with respect to Indian tribes than cases in the past have. It's an example of the Court putting its foot down on the definition of trust."
Navajo Nation: No fiduciary responsibility
In United States v. Navajo Nation, the Court's six to three decision says that the Indian Mineral Leasing Act does not specify a fiduciary responsibility on the Government's part regarding the negotiation of coal mining lease royalties. The Navajo Nation was attempting to sue the United States for $600 million dollars in damages because in 1985, after meeting and corresponding with Peabody Coal Company lobbyists and representatives, former Interior Secretary Donald Hodel did not approve a lease renegotiation that greatly increased royalties to the Navajo Nation. The tribe was forced to continue bargaining with Peabody, resulting in a much lower royalty percentage.
Justice Ruth Ginsburg writes for the majority, saying that the IMLA does not impose any detailed fiduciary responsibilities on the Government. The act simply requires the Secretary of Interior to approve coal mining leases. The Navajo Nation's claim fails "because neither the IMLA nor any of its regulations establishes anything more than a bare minimum royalty" and there is nothing in the statute indicating that the Secretary has a duty to ensure a higher rate of return for the tribe.
Not fair, but not anti-tribal
Professor Robert Clinton teaches American Indian law and Constitutional law at Arizona State University. Clinton thinks the U.S. Supreme Court has an anti-Indian bias, but it's not showing up in these two decisions.
"These cases did not involve the area of law where the Court is most anti-tribal. These are not jurisdictional cases. There were not any state interests involved; there were not any non-Indian interests involved. It was a straight out suit between the tribes and the trustee, the United States."
What is indicated by the decisions is the Court's attention to detail. Clinton notes that a much greater injustice was done to the Navajo Nation, but it lost because the IMLA did not clearly cover the Secretary's misbehavior. The White Mountain Apache tribe won because it had a 1960 Act that said the Government was in charge of the Fort Apache property.
"I see this as a reflection of something in the way the U.S. Supreme Court approaches cases generally, not just Indian Affairs," Clinton says. "The Supreme Court doesn't see itself rating in justice. The Supreme Court sees itself as engaging in reviewing technical, formal areas of the law."
Will it break the bank?
Louis Denetsosie is the Attorney General of the Navajo Nation. His immediate response when asked about the difference between the two decisions is that it's all about money. The White Mountain Apache tribe's damage claim is $14 million; the Navajo Nation's claim is $600 million.
"I've noticed that the government as a whole, after 9-11, does not look kindly on paying out a lot of damages," says Denetsosie. "It's not shown in the decision. They discussed the fine points of the law. But I think it's always in the background."
Brian Pierson, who practices Indian law in Wisconsin, also thinks these decisions have more to do with lucre than with law. Pierson says, "The Supreme Court's trust decisions reflect its determination to find a means of protecting the U.S. Treasury from the astronomical damages the Government would have to pay if it were held liable for all of its breaches of duty as trustee."
Pierson thinks the White Mountain Apache ruling contrives a torture test to find remedy out of a 1960 statute. An act that he feels is no better than the Indian Mineral Leasing Act as far as specifically reciting trust duties.
Pierson says the Navajo Nation has undisputed evidence that the federal trustee deliberately manipulated lease negotiations to the tribe's detriment, but it is denied a remedy because "circumstances in Navajo are applicable to many tribes, and if decided in the tribe's favor, would have potentially opened the government to numerous additional claims."
Meaning for other tribes
The Navajo and White Mountain Apache decisions rely on Supreme Court law made 20 years ago, the Mitchell I and Mitchell II cases. Clinton says the recent decisions do not change the judicial law created in the Mitchell cases. Tribes that want to sue the federal government for damages because of breach of trust have to show a basis for the claim, either in a federal statute or regulation, the Constitution, a treaty, an Executive Order, or a contract with the United States.
Denetsosie does not see any specific implications for other tribes in the Navajo and White Mountain rulings. There will be other situations where tribes can prove damages using other statutes.
Is there any meaning for the Cobell class action plaintiffs, who are suing the Government for mismanagement of Individual Indian Monies? Pierson says the Cobell question is about whether the Government has failed its trust obligations in its accounting practices, which is different from questions about breaching trust in negotiating or approving business deals.
But Denetsosie thinks there is a relationship, and that the Navajo decision sets the stage for the Cobell decision. He says the courts will follow the law determined in Mitchell I and Mitchell II.
"In Cobell it'll be what are the duties of the Secretary of Interior under the statutes pertaining to her management of trust funds for allottees," Denetsosie says.
Timing is everything
Denetsosie wishes the clock was turned back a score of years.
"This was a very tough case. But 20 years ago we might have won. We have different justices sitting on the Supreme Court now that are not as friendly to Indian tribes as in the past. This country has grown more conservative."