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Cobell sees positive in Supreme Court rulings
MONDAY, MARCH 17, 2003

The Supreme Court's recent rulings on the federal trust relationship reaffirm the rights of individual Indian beneficiaries, according to the lead plaintiff in the billion dollar trust fund lawsuit.

Elouise Cobell, former treasurer for the Blackfeet Nation of Montana, was disappointed that the justices rejected the Navajo Nation's $600 million breach of trust claim. But their decision in favor of the White Mountain Tribe of Arizona forces the federal government to act like a trustee, she said.

"We have a Supreme Court ruling that says common law trust standards prevail," Cobell said.

Filed in 1996, the Cobell case is based on a relatively simple theory. By managing the assets and funds of American Indians, the U.S. acts a fiduciary and is subject to all the laws, standards and practices of a private trustee, the plaintiffs assert.

The Bush administration directly challenged that notion by seeking Supreme Court review of two seemingly unrelated tribal trust cases. In court papers, Department of Justice attorneys argued that the government can't be sued for breach of trust without its consent. They also said the government doesn't have any trust obligations beyond those explicitly mentioned in federal law.

Although the Navajo Nation lost by a 6-3 vote, the ruling rejected the first line of reasoning. The Indian Tucker Act, wrote Justice Ruth Bader Ginsburg for the majority, authorizes tribal suits against the government.

The 5-4 White Mountain Apache decision responded to the second defense. Since the Department of Interior maintained control over trust property belonging to the tribe, it is subject to common law trust duties, wrote Justice David Souter for the majority.

"[T]he fact that the property occupied by the United States is expressly subject to a trust supports a fair inference that an obligation to preserve the property improvements was incumbent on the United States as trustee," the decision stated. "This is so because elementary trust law, after all, confirms the common sense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch."

Robert Brauchli, an attorney based in Tucson, Arizona, successfully argued the Apache case. Although the tribe is asking for monetary damages, while the Cobell suit seeks equitable relief, he noted the parallels.

"The White Mountain Apache Tribe decision is very supportive of the Cobell case," he said in an interview. "I can't think of a stronger case for liability. There is total control of the estate by the trustee. The obligations necessarily flow from that total control."

The majority opinion noted that forcing the government to act as a trustee can't always make Indian beneficiaries whole. Cobell argued that this language was strong backing for beneficiary rights.

"What the Supreme Court did was open up the door," she said. "If we want to come back for damages, we can."

The Cobell case is currently proceeding on two fronts. Secretary of Interior Gale Norton and former Indian affairs aide Neal McCaleb are seeking to overturn their recent contempt convictions. The D.C. Circuit Court of Appeals will hear arguments on April 24.

U.S. District Judge Royce Lamberth has scheduled a trial starting in May to address reform of the trust system. The Cobell plaintiffs have submitted suggestions based on common law trust standards, a position that drew backing from the National Congress of American Indians (NCAI), which represents more than 200 tribes, in an amicus brief.

On the other hand, the tribes noted, the Department of Interior's plan seemed to be banking on the Supreme Court to overrule its common law trust duties.

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

White Mountain Apache Tribe Decision:
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

Related Stories:
Appropriators question historical accounting (3/13)
DOI sanctioned for 'deceit' (3/12)
IIM accounting keeps changing (3/12)
Hall: Tribes 'at the table' in Cobell (3/10)
Navajo Nation fallout considered (3/7)
Supreme Court upholds common law trust claim (3/5)
High court ruling makes 'passive' trustee of U.S. (3/5)
A mixed bag for Indian trust (3/5)
Supreme Court issues trust decisions (3/4)
Panel predicts Apache victory (12/4)
Court considers Navajo dispute (12/3)
U.S. pressed on trust duties (12/3)

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