It’s only fitting that the latest bad U.S. Supreme Court decision regarding Indian law would begin with an awkward and offensive phrase, written by Justice Antonin Scalia to describe the plaintiff. “For over 15 years, the Indian Tribe known as the Navajo Nation has been pursuing a claim. …,” he wrote in the opinion.
Identifying the Navajo people and their government as a sovereign Indian nation would have ruined the tone and intent of the decision, which was to deny the Navajos’ claim for monetary damages, squash any remaining faith in finding legal relief, and perhaps cast doubt on the federal-tribal trust relationship. In its second judgment in six years the court ruled April 6 against the Navajo Nation, saying it could not sue the federal government for breach of trust in the 1984 renegotiation of coal royalties with the Peabody Coal Company, which has mined coal from tribal lands for decades.
The decision in the Navajo trust litigation represents the second time this same dispute has come to the Supreme Court, despite the court’s apparent indifference toward Indian issues. That in itself is noteworthy, as the Supreme Court allows appeals in fewer than five percent of all cases presented to it. A lower federal court ruled in favor of the Navajo Nation, perhaps because it was appalled by the conduct of the Interior Department. The facts in this case included evidence of collusion between Peabody Coal and then-Interior Secretary Donald Hodel to limit the royalty rate paid to the Navajo Nation for its coal reserves, resulting in a “negotiated” lease price they knew was considerably lower than what the tribe had originally proposed and was too close to getting. The Navajo Nation considered the trustee responsibility on the part of the United States breached.
But Justice Scalia focused on the governing law of Navajo I, the Indian Minerals Leasing Act of 1938, the court distinguished between a fiduciary obligation on the part of the federal government and a “limited approval role” under the IMLA. In the background, Scalia reiterates the standard set in Navajo I, which stated the tribe “must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” The court decided that unless the trust responsibility is specified in statute or law, then it doesn’t exist as an obligation on the federal government, leading it to say that “neither the Government’s ‘control’ over coal nor common-law trust principles matter.”
With no obligation to act as a trustee, does this mean the government has the presumption of authority, but with no responsibility? It is an ominous question, one that is likely to fuel debate on the federal-tribal trust relationship.
Navajo Nation President Joe Shirley Jr. wants one thing to be understood, and it’s that the court in its ruling did not deny wrongdoing by the United States. Instead, it decided using the set of laws presented. “The reason why the U.S. Supreme Court, as I understand it, didn’t go along with it was that the wrong set of laws was used to bring that lawsuit. Within the IMLA, the federal regulations, I don’t believe, give a provision to pay damages if there was a wrong done in any of the leasing. That is the reason why, I believe, that the U.S. Supreme Court did what it did.”
The legal outcome of this case was no surprise, given the conservative composition of the court. Having exhausted its 15-year quest for an honorable resolution in the court system, the Navajo Nation may be well-served by pursuing a political solution. Certainly, the nation has cultivated good relations with the current U.S. federal administration. As an early supporter of then-candidate Barack Obama, the Nation enjoys a constructive relationship with the president. Obama has nominated several Native Americans for appointments within his administration, some at the highest levels of the federal government. Interior Secretary Ken Salazar has made numerous pledges to work with tribes on a government-to-government basis (although some feel he committed a misstep last month when he said the outcome of a federal appeal could lead to a settlement of the ongoing Cobell trust case.) Lastly, but maybe most fruitful, is Obama’s recent nomination of a new solicitor for the Interior Department, Hilary Tompkins, a Navajo.
Developing and pursuing strategy toward a political solution may breathe life into a matter Justice Scalia declared “closed.” It looks like the Navajo Nation may take that route, if President Shirley has his way. In response to the decision he said, “Just because the U.S. Supreme Court said we need to stop, I don’t think so.”
