In his book "Supreme Injustice: How the High Court Hijacked Election 2000," Alan Dershowitz makes the case that five justices of the Supreme Court rewrote history and precedent in order to rule in favor of now-President Bush in the Great Florida Election Follies of 2000. Professor Dershowitz does not argue that Al Gore actually won the election, nor do I. Rather, his point is that the decision of the five Justices who voted in favor of candidate Bush "reflected not any enduring constitutional values rooted in the precedents of the ages, but rather the partisan quest for immediate political victory."
American schoolchildren are taught the American myth that ours is "a nation of laws, not men." When I was a law student, my teachers attempted valiantly to have me regard the law as something larger than life, something reflecting ancient wisdom and administered by men (and the occasional woman) of great moral and intellectual integrity. I only doubted that then; now I know it to be untrue. I do not think myself cynical in this regard, just realistic. I believe that the law is just what judges, congressmen and senators say it is, and no more. And Federal Indian law, the law governing the authorities, immunities, and rights of Indian tribes and Indian people, is just what any five members of the Supreme Court say it is at any given moment.
Thus I watch with growing concern as tribal leaders negotiate with the Interior Department concerning the organization of the trust reform effort. While I believe those negotiations are a good idea and must be pursued, I fear that the real action in trust reform is taking place before the Supreme Court, and I don't believe the news will be good.
Two cases involving the extent and nature of the federal trust responsibility to Indians are pending before the high court. In the first, United States v. White Mountain Apache Tribe, the lower court ruled that the United States can be held liable for its failure to preserve adequately lands and buildings it uses for Indian school purposes.
Although the United States retains control of the buildings and lands while it uses them for a school, the property is held in trust for the Tribe and is to be turned over to the Tribe when it is no longer used as a school. The buildings have fallen into gross disrepair, and the Tribe claims that the United States must pay the Tribe for this waste of the trust assets.
In the second case, United States v. Navajo Nation, the Tribe is suing the federal government for its failure to meet its responsibilities as trustee with regard to a coal lease on tribal lands. In 1984, the Navajo Nation asked that its coal lease with Peabody Coal Company be amended to increase the royalty being paid by Peabody to the tribe. The BIA Area Director granted the tribe's request. Peabody appealed to the Assistant Secretary for Indian Affairs.
Then Peabody, unbeknownst to the tribe, met with Interior Secretary Donald Hodel to discuss the matter. The meeting was arranged by a lobbyist who was a former aide and friend of the Secretary. Without discussing the matter with the tribe, Hodel sent a memo to the Assistant Secretary for Indian Affairs "suggesting" that the Assistant Secretary tell Peabody and the Navajo Nation that a decision on the Peabody appeal was not imminent and that the parties should try to negotiate a settlement of the matter. The Assistant Secretary held back his decision, a draft of which indicated that he would have ruled in favor of the tribe. The lower court held that the tribe could sue for money damages for Hodel's breach of his responsibility to the Navajo Nation.
Both tribes prevailed before the lower courts, but the United States has appealed to the Supreme Court. In his petition to the high court, Solicitor General Theodore Olson ? the same Theodore Olson who represented Governor George W. Bush before the court in the Florida election case ? sums up his argument succinctly. After acknowledging that 19th-century decisions of the Supreme Court establish a trust relationship between the United States and the tribes, Olson says, "The United States fully accepts the implications of that relationship and the undertakings that go with it. Not all those undertakings, however, give rise to legally enforceable duties on the part of the United States." In other words, the United States has the duties and the powers of a trustee, but cannot be held to account when it fails to fulfill those duties.
The Supreme Court has steadily eroded the authorities of tribal governments over the past 25 years. With only occasional exceptions, the court has consistently reduced the authority of tribes over non-tribal members on the reservations beginning with the decision in Oliphant v. Suquamish Indian Tribe in 1978, up to the decision in Nevada v. Hicks last year. Justice Antonin Scalia says point-blank on the lecture circuit that tribes simply are not sovereigns. Justice Stephen Breyer told an Indian audience earlier this year that it is unwise to bring tribal sovereignty cases to the court while its current members remain.
Since it has done lasting damage to the doctrine of tribal sovereignty, why should anyone believe that the court would not turn its attention now to the doctrine of Indian trust? Moreover, for anyone to believe that the Solicitor General, in his arguments before the court, will not be laying the groundwork for a later appeal in the Cobell trust funds litigation is breathtakingly na?ve.
Meanwhile, tribal leaders continue their talks with the Interior Department over the future organization of the BIA, the Office of the Special Trustee for American Indians and other offices of the Department having responsibility for Indian trust assets. At their current pace, these talks are unlikely to produce results soon, and events are quite likely to overtake them.
The Cobell litigation is reaching another crucial juncture. Were U.S. District Judge Lamberth to order that the reform effort be turned over to a court-appointed receiver, the tribal-DOI task force's work could easily become an irrelevancy. And when the Supreme Court decides the two trust cases now before it, there may be so little left of Indian trust doctrine that the details of DOI's organization become unimportant.
The only obvious avenue of relief from this scenario is through the Congress. Pending now before the Congress is S. 2212, "The Indian Trust Asset and Trust Fund Management and Reform Act of 2002." Introduced by Senators McCain, Johnson and Daschle, the bill would, among other things, establish within DOI an Office of Trust Reform Implementation and Oversight to be headed by a Deputy Secretary for Trust Management and Reform.
I am generally loath to having Congress create even more administrative structures for Indian trust. I am convinced, for example, that the creation of the Office of the Special Trustee was a mistake. Still, if it is an objective of the tribes and DOI to avoid the appointment of a receiver, some real change in the structure of trust reform must be made. Moreover, the general concept of a Deputy Secretary in charge of trust reform is broad enough to allow the tribes and DOI to shape a system beneath the Deputy Secretary that discourages feuding between the OST and the BIA and subjects all parts of the Department to the overriding supervision of a single responsible official.
S. 2212 requires amendment, however, to deal effectively with the prospect of the Supreme Court gutting Indian trust doctrine. In short, the Congress must enact guiding principles for the execution of the trust responsibility before the Supreme Court decides the White Mountain and Navajo Nation cases. Given that the court will hear the cases this fall, there is not enough time for the Congress to negotiate with the tribes and DOI a comprehensive set of doctrinal principles to govern the administration of Indian trust.
Fortunately, there is a ready substitute. In 2000, the Department of the Interior, at the urging of key members of Congress, worked with a number of tribal representatives to develop a set of trust principles to guide the Department's execution of its trust responsibilities. Those trust principles could be readily written into S. 2212 and enacted by the Congress. While those principles might not, for constitutional reasons, be determinative of the White Mountain and Navajo Nation cases, at least it would preserve key concepts of the federal-tribal trust for future cases.
Have no doubt that, if the Supreme Court trims Indian trust doctrine in ways that contradict the trust principles negotiated by the tribes and DOI, the Department will not hesitate to revise the trust principles to the tribes' disadvantage. At this point, those principles are embodied only in departmental policy; they can be changed with the stroke of a pen by Secretary Norton, with or without the tribes' approval. If enacted by Congress, they ascend from the status of mere policy and become laws of the United States.
While the tribes have won the initial battle of BIA reorganization, they still stand to lose the larger war of Indian trust doctrine if they do not act quickly. The tribes should support S. 2212 and request its immediate amendment and enactment. The doctrines underlying the responsibility of the United States to Indian tribes and Indian people are far too important to trust to this Supreme Court.
Kevin Gover, a columnist for Indian Country Today, is a partner in the Washington, D.C. office of Steptoe & Johnson LLP. Mr. Gover's practice focuses on federal law relating to Indians and on Indian tribal law. He is the former Assistant Secretary for Indian Affairs in the U.S. Department of the Interior.