Turtle Talk: Commentary on Navajo Nation ruling

Law | Opinion

Tuesday, April 7, 2009

"The outcome in Navajo Nation was expected and a bit old news by now. Maybe it’s time for a retrospective on tribal suits against the United States, and their possible impact on federal Indian law, especially the trust relationship. Is it possible that the upswing of tribal money claims against the United States have somehow indirectly undermined some of the key foundations of federal Indian law? It may be.

We know that from 1959 to 1987 or so, tribal interests won about 59 percent of their cases in the Supreme Court. That trend has reversed dramatically since then, dropping to about 25 percent since 1987. Some of the interesting hallmarks of those successful cases in the 1960s and 1970s was the successful assertion of a federal government interest.

Consider Menominee Tribe v. United States. There, the U.S. had lost a case for money damages in the lower court brought by the tribe, damages caused by the Wisconsin Supreme Court’s holding that the U.S. had abrogated Menominee treaty rights. And so the U.S. argued for the Supreme Court to reaffirm tribal treaty rights in the Supreme Court. The U.S. had similar concerns about federal liability to Indian tribes for money damages in the first two Oneida land claims cases (1974 and 1985), and perhaps in other treaty rights cases (Fishing Vessel). In short, so long as the United States was potentially liable for injuries to Indian tribes, the government eoften would litigate on the side of the tribes as an indirect means of protecting the federal treasury."

Get the Story:
Navajo Nation Commentary (Turtle Talk 4/7)

Supreme Court Decision:
Syllabus | Opinion [Scalia] | Concurrence [Souter]

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]