01 December 2002

Supreme Court to Take up Two Indian Rights Cases
by Michelle Rushlo

PHOENIX -- The U.S. Supreme Court will hear arguments Monday in two cases filed by Arizona tribes that could eventually force the Interior Department to take more responsibility in its role as a trustee over reservation lands and resources.

The cases, which will be heard back to back, could also potentially create a windfall for the tribes involved: $600 million in the case of the Navajos and $14 million in the case of the White Mountain Apache Tribe.

Both cases accuse the federal government of shirking its duties to the tribes.

The primary question before the court is whether the government has the same obligations -- and potential financial liabilities -- that other trustees have to act in the best interest of the trust, or if the government serves a more administrative role for the sovereign nations.

"There is a fear (among tribes) that the court might put some language in there that the government has a relaxed obligation," said Robert Anderson, a University of Washington professor specializing in Indian law.

Tribes worry that instead of holding the government to the same common-law standards required of other trustees, the government will be allowed to act under a "sort of close-enough-for-government-work standard," he said.

If the government must act like other trustees and can be held financially liable for failing to do so, other tribes might be encouraged to jump into the legal ring. The Hopis have already filed a lawsuit similar to the Navajo claim.

"Whether statutes or regulations governing Indian resources may subject the United States to suits for money damages is a question of recurring and fundamental importance," Solicitor General Theodore Olson said in a brief on the Navajo case.

In both cases, the Bush administration is asking the Supreme Court to reverse appellate court decisions holding the government financially liable. It argues the government can't be held financially responsible because Congress didn't specifically open itself to such financial claims.

A spokeswoman for the Justice Department declined to comment on the cases.

In the Navajo case, the appellate court found the federal government could be liable for up to $600 million in lost coal mining royalties because it didn't protect the tribe's interests.

The Navajos in 1984 had sought 20 percent of gross coal mine proceeds from Peabody Energy, a mining company it had been under contract with since 1964. When talks broke down, a regional Bureau of Indian Affairs official was asked to intervene and ruled the tribe should get 20 percent.

Before the decision was made public, however, then-Secretary of Interior Donald Hodel met secretly with Stanley Hulett, a friend and Peabody lobbyist. Hodel then blocked the regional official's decision and the tribe eventually settled for 12.5 percent of gross proceeds. The tribe only learned about the meeting after it sued in 1993.

The loss of coal proceeds is a significant issue for the Navajos, who rely on coal royalties for about a third of the tribe's annual $95 million budget.

The issue has added urgency for the tribe because Navajo coal will eventually be depleted, possibly in less than a decade, said Ray Baldwin Louis, a spokesman for Navajo President Kelsey Begaye.

Peabody officials say the coal likely will last closer to 20 years.

"If the opinion is favorable to the Navajo Nation, it means that we can catch up with a lot of the projects that have been put on hold," Louis said.

The Navajo Nation occupies the nation's largest Indian reservation, sprawling across a chunk of Arizona, New Mexico and Utah. Many of the reservation's homes lack indoor plumbing or electricity, and Census figures show 40 percent of families live below the poverty level, compared with Arizona's nearly 10 percent.

The White Mountain Apache case involves significantly less money but remains important for the eastern Arizona tribe.

An appellate court ruled the federal government was responsible for repairs to a group of 30 historic Fort Apache buildings used for a BIA school. The government is seeking to have that decision overturned.

In 1999, the tribe estimated it would cost about $14 million to repair the buildings, some of which have been condemned after decades of neglect.

The tribe, which uses the less rundown buildings for a school, offices and a museum, wants to see the structures repaired.

The buildings -- which include a 130-year-old log cabin, clapboard sided homes and other structures -- "are falling down inside, totally decaying. One is inhabited by bats," said tribal spokeswoman Chadeen Palmer. "It didn't happen overnight."

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The cases are:

United States v. Navajo Nation, 01-1375

United States v. White Mountain Apache Tribe, 01-1067

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On the Net:

U.S. Supreme Court: http://www.supremecourtus.gov/

Interior Department: http://www.doi.gov/

Fort Apache Historic Park: http://www.wmonline.com/attract/ftapache.htm

Copyright 2002 Arizona Daily Sun