While the relationship between the U.S. government and sovereign Indian tribes has evolved tremendously over the years as a result of treaties, litigation and legislation, the outcome of two cases pending before the U. S. Supreme Court has the potential of dramatically altering and more narrowly defining the nature of the government's trust responsibility to tribes for decades to come.
In concept, but unfortunately not always in practice, the more than 560 federally recognized tribes in the United States have the right to expect the federal government to work in the best interest of Indian country even with self-determination and self-governance being part and parcel of that relationship. However, as witnessed by two pending Supreme Court cases, the nature of the government's trust responsibility is coming under attack by the Bush Administration. In my view, the Administration apparently is seeking to erode the modern-era concept of trust responsibility partly in an effort to feather the federal budget nest. In one sense, while the Administration speaks of tax cuts for the wealthy, it also seeks to reduce budget deficits on the backs of Indian country.
In this regard, on Dec. 2 the Supreme Court heard oral arguments on two cases, one involving the maintenance of Fort Apache on White Mountain Apache tribal lands in Arizona and another involving coal royalties on leases within the Navajo Nation in New Mexico. During the recent proceedings before the High Court, the Department of Justice (DOJ) acting on behalf of the Department of Interior (DOI) and the federal government stated that the laws in place which govern the trust relationship are becoming "archaic."
In the White Mountain Apache case, DOJ then specifically argued that since the law regarding land held in trust for the Tribe does not specify that it be held "for the benefit" of the Tribe, the United States should not be held liable for monetary damages to Fort Apache, which has incurred about $14 million in damages from a lack of adequate maintenance.
Financial interests are also at stake in the Navajo coal lease case, where the contention is that politics and negligence within the Interior Department during the Reagan Administration resulted in the Tribe being shortchanged on its coal royalties.
Considering the more than 100 years of a trust relationship, it is impossible for me to comprehend that the Bush Administration does not believe its trust responsibilities exist to benefit Indian tribes. If the arguments in these two cases are a precursor to what we are to expect from the Bush administration in the second half of its term, then friends of Indian country need to prepare for battle.
Sound the Canons
Black's Law Dictionary defines "trust" as "a property interest held by one person for the benefit of another." Furthermore, the U.S. Supreme Court has developed a set of rules for interpreting treaties, agreements, laws or administrative decisions with American Indians. The rules were first developed in cases involving treaties and have been long held. These "canons of construction" for American Indian Law, as they are commonly referred to, are: (1) treaties are construed as the American Indians understood them; (2) doubts concerning the meaning of treaties, agreements, laws or administrative decisions are resolved in favor of the American Indians and (3) explicit language or clear Congressional intent is required to abrogate American Indian Treaty rights. A Court ruling against the tribes in these cases could severely weaken these important canons.
If the Bush administration is unclear about the standards it needs to uphold regarding Indian trust land, then perhaps Congress should act to clarify the law. This should only happen through the appropriate legislative process including public hearings and consultation with Indian tribes. Any change needs to come about through a process where the tribes are in a position of strength and on equal footing with the Department of Interior. In fact, much work on trust standards has already been done by the Tribal Task Force on Indian Trust Fund Management Reform, establishing a good starting point from which to work.
It has been suggested that because of the dismal history of trust land management by the federal government, trust standards should be used only as a "goal." I find the suggestion that trust standards be "dumbed down" so the federal government can easily meet them to be insulting not only to the land-holding Indian tribes but also to this great nation. Only trust standards should be enacted that strongly protect the integrity and value of Indian land, while tribes maintain a cause of action to ensure the standards are met.
In countless arguments from the Bush Administration and its Republican cohorts on the House Committee on Resources, we learn of their commitment to the rights of private property owners. Yet, when the original property owners of our land ask for their rights to be protected, they protest. I sincerely hope the U.S. Supreme Court will use its power in the checks and balance system to stop this assault on Indian law.
Congressman Nick Rahall, II, D-W.Va., is the ranking Democratic member of the House Committee on Resources which has jurisdiction over legislation affecting Native Americans, Alaska Natives and Indian tribes. He is a leading supporter of tribal sovereignty in the U.S. House of Representatives.