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FRIDAY, MARCH 29, 2002

In an odd twist to the president's "leave no child behind" policy, the Bush administration is balking at the notion it should repair a set of crumbling school buildings in Arizona.

Taking the battle all the way to the Supreme Court, the Department of Justice has asked the nine Justices to reverse a ruling affecting the Theodore Roosevelt School. Located within the boundaries of the White Mountain Apache Reservation, the facility is built on a former U.S. Army fort and has been used to educate tribal children since the 1920s.

But according to Solicitor General Ted Olson, the Department of Interior has no obligation to rehabilitate and repair more than 30 buildings. In a petition filed in January, he said the federal government only has a "limited trust responsibility" that does not require maintenance.

Neither can the government be forced to pay $14 million for failing to fix buildings all sides in the dispute agree are in poor condition, Olson continued. Unless an appeals court ruling is reversed, claims could be brought on the 56 million acres of land held in trust for tribes and individual Indians, he argued.

"The decision in this case could prompt money-damages claims for breach of trust with respect to such property, even though such claims would otherwise be barred," Olson wrote on January 15.

The central issue in the case is a 1960 law which directed the government to hold Fort Apache in trust for the White Mountain Apache Tribe but which also gave the Secretary certain measures of control. Some of the buildings at the former military post date to the late 1800s when the site first came into use.

Included are dormitories and buildings for one of the worst performing schools under Assistant Secretary Neal McCaleb's watch. According to the Bureau of Indian Affairs, the school's 100-plus students are only 16 percent proficient in math, 29 percent proficient in language arts, levels far below standards Indian educators are desperately trying to meet.

Key in the battle is providing facilities free of problems, officials acknowledge. Seeking to repair the fort, the tribe in 1999 filed a breach of trust suit for $14 million, an estimate based on meeting the Interior's own building code.

The tribe lost the case initially when a federal judge determined there was no obligation to repair the site. But in a 2-1 decision last May, the Federal Circuit Court of Appeals reversed and said the 1960 law created a duty for which the tribe could receive money.

In its reply to the government's petition, the tribe calls on the Supreme Court to reject hearing the case. Attorney Robert Brauchli also disputes the idea that its claim would open the floodgates to other lawsuits.

"The government attempts to grab the attention of this Court with alarmist predictions," Brauchli wrote in his brief.

Without the funds, the school and the other buildings face an uncertain future. A little over $1 million is budgeted for the school in fiscal year 2003 and the school is not on the BIA's "priority" list for construction, which has the Bush administration says is one of its top goals.

Yet according to an argument presented by government, the Interior is allowed to do whatever it wants to the fort. "[I]f it were deemed appropriate to dynamite those buildings to the ground by the Secretary of the Interior, it would be within the Secretary's decision to do so," a government attorney told the appeals court in December 2000, according to court documents.

The school is up for two roof replacement projects next year, however. The tribe hopes to rehabilitate other buildings for historic and tourism purposes. Fort Apache is on the National Historic Register.

Related Documents:
DOJ Brief (January 15, 2002) | White Mountain Apache Tribe v. US, No 00-5044 (Fed Cir. May 16, 2001)

Only on Indianz.Com:
Supreme Court considering Indian cases (2/19)
Apache Tribe wins trust case appeal (5/17)

Get Budget Documents:
Interior Budget in Brief [DOI] | Budget Highlights: Service to American Indians [DOI] | Budget Highlights: Bureau of Indian Affairs [DOI] | Interior Overview [OMB] | Interior Details [OMB]

Relevant Links:
White Mountain Apache Tribe - http://www.wmat.nsn.us
Office of Indian Education Programs, BIA - http://www.oiep.bia.edu
Indian School Report Cards, BIA - http://www.oiep.bia.edu/school_report_cards.htm

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