Navajo Nation sees support on Supreme Court case

Law

Wednesday, February 4, 2009

The Navajo Nation is getting support from some unexpected sources as it prepares for another battle before the U.S. Supreme Court.

On February 23, the justices will hear an appeal of the tribe's long-running trust lawsuit. The federal government wants the court to block the Interior Department from being held liable for a botched coal lease.

But a group of former Interior secretaries -- including one who replaced the official at issue in the case -- is backing the tribe. In a brief filed last month, they said they are interested in ensuring the government lives up to its trust responsibilities.

"Despite the long recognition of these trust obligations, the United States neglected the economic development of the Navajo Nation, the largest tribe in the country, and by the late 1940s the Nation was in such dire circumstances that Congress was forced to authorize emergency relief on the Navajo Reservation," the four former Cabinet secretaries wrote.

The economic theme is the focus of another brief in support of the tribe. The states of Arizona, New Mexico and Utah -- where the reservation is based -- say it is everyone's interest for the government to live up to its trust duties.

"[W]hen the Department of the Interior fails to require mineral developers on the Reservation to pay reasonable royalties, the burden on the States is increased," the three attorneys general wrote. "The states therefore have a significant stake in ensuring that mineral lessees on the Navajo Reservation pay fair market value for the minerals they extract."

Yet another brief looks at the dispute from a scholarly and historical angle. Eight prominent Indian law professors frame the case as one of a trustee taking advantage of a beneficiary.

So long as the government maintains the absolute control that it asserted in 1790, its exercise of that control should be measured by fiduciary standards that are vindicated by meaningful remedies," the brief states. "The history of Indian claims cases fully supports such a remedy."

The three briefs join one submitted by the National Congress of American Indians and seven tribes. Along with the Native American Rights Fund, NCAI monitors and coordinates notable Supreme Court cases, like US v. Navajo Nation

The tribal interests go up against the federal government, whose attorneys have fought the lawsuit since it was filed more than a decade ago. President Barack Obama has pledged a new era in tribal-federal relations but his views won't be affecting the case.

At issue is lease between the Navajo Nation and Peabody Energy, the world's largest coal company. Facing economic pressure, the tribe accepted a less than favorable royalty rate on one of the nation's most valuable coal deposits.

As a result, the tribe said it was cheated out of at least $600 million.

The Bureau of Indian Affairs was prepared to back a better rate until former Interior secretary Don Hodel intervened after meeting privately with a former aide who worked for Peabody as its lobbyist. Hodel was replaced by Manuel Lujan, a Republican who signed onto the brief along with the other former Interior secretaries.

The Federal Circuit Court of Appeals has twice sided with the tribe and has pointed out the government's double-dealing on the matter. But the Supreme Court in March 2003 struck down the first victory after an appeal by the Bush administration.

The current case, also appealed by the Bush administration, represents what might be the tribe's one last shot. After the first loss at the high court, the tribe revived the case by citing other laws and regulations that weren't considered during in 2003.

Briefing on the case was completed last month, with Peabody and Southern California Edison, a utility that depends on coal from the Navajo Nation, filing in support of the government. Separately, Peabody faces a federal racketeering lawsuit for its role in the dispute.

Briefs:
Supreme Court Documents:
Docket Sheet: No. 07-1410 | Brief: Former Interior Secretaries | Brief: New Mexico, Arizona and Utah | Brief: Law Professors | More: NCAI-NARF Tribal Supreme Court Project

Federal Circuit Decision:
Navajo Nation v. US (September 13, 2007)

March 2003 Supreme Court Decision in US v. Navajo Nation:
Syllabus | Opinion [Ginsburg] | Dissent [Souter]