FROM THE ARCHIVE
No easy victory with Supreme Court trust rulings
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WEDNESDAY, MARCH 5, 2003

Indian leaders and Indian law scholars reacted with caution to two trust rulings issued by the Supreme Court on Tuesday.

The split nature of the decisions -- one against the Navajo Nation, the other in favor of the White Mountain Apache Tribe of Arizona -- prevented observers from declaring a total victory. But they all agreed that the Supreme Court, which has been negative to tribal rights in the past two decades, upheld the general trust relationship between the United States and Indian beneficiaries.

"Both of these cases are examples of the Bureau of Indian Affairs and the Department of Interior having to follow their trust responsibilities and their duties," said Tex Hall, president of the National Congress of American Indians (NCAI), which submitted an amicus brief in the Navajo case, decided on a 6-3 vote.

The Native American Rights Fund (NARF) wrote a brief in support of the Apache tribe, whose claim to fix dilapidated school and other buildings on an historic fort narrowly survived a 5-4 vote by the high court. Tracy Labin, a NARF attorney in Washington, D.C., said the decision was instructive.

"The benefit of the White Mountain case is that the court really looked at the word 'trust' in the context of Indians," she said. "When Congress passes a statute and uses the word 'trust' it means the word 'trust.' That is now affirmed with respect to the Indian tribes."

In court pleadings, Bush administration attorneys argued that neither tribe could sue for breach of trust under the Indian Tucker Act, a general law that authorizes tribal suits against the federal government. Yesterday's decisions solidly rejected that notion, observers and those involved in trust cases said, even though the Navajo Nation lost.

"The central law they [the government] were trying to overturn has been decided against them," said Robert Brauchli, the Tucson, Arizona, attorney who handled the White Mountain case. "They tried to write out the word 'trust' in the Indian Tucker Act. They lost on that part."

Keith Harper, a NARF attorney who represents more than 500,000 individual Indian beneficiaries in the Cobell trust case, was extremely disappointed with the court's Navajo ruling. He met with Navajo Nation Vice President Frank Dayish Jr. yesterday morning before the decision came out and said said it was clear that the federal government owed it to the tribe to be honest. Reagan administration officials in the late 1980s suppressed an administrative decision favorable to the tribe, forcing the tribe to accept a less than favorable royalty rate for a valuable coal deposit in northeastern Arizona.

"The fact that the Supreme Court said you cannot bring an action when there is such a clear duty of loyalty that a trustee is supposed to show a beneficiary should be of grave concern to tribes because of that undermining action a trustee can take," he said.

Louis Denetsosie, the Navajo Nation's attorney general-nominee whose predecessor, Levon Henry, took part in the case, said it was imperative that Congress clarify the government's fiduciary obligations. "That's what's going to have to happen now," he said. "Either the United States has no responsibility except to approve these lease in the future. [But] if they are exercising substantial authority over Indian lands, then they should have that responsibility."

Hall, who is also chairman of the Mandan, Hidatsa and Arikara Nation of North Dakota, agreed. "It's very important that tribes, through our trust reform effort, have to get legislation that says what our relationship is," he said from Las Vegas, Nevada.

A push to clarify the government's trust duties and the standards by which trust assets must be managed stalled last year when Bush administration officials objected to legislation they said was unrelated to its trust reform initiatives. Top Interior officials have been reluctant to state their obligations for fear of opening up the department to legal claims.

Excerpts:
Apache Tribe| Navajo Nation

Navajo Nation:
Syllabus | Opinion [Ginsburg] | Dissent [Souter]

White Mountain Apache Tribe:
Syllabus | Opinion [Souter] | Concurrence [Ginsburg] | Dissent [Thomas]

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp

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