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TUESDAY, APRIL 15, 2003

Tribal governments shouldn't rely on the courts to reinforce the federal trust relationship, Indian law practitioners advised at a conference last week.

Tribes can't depend on the Supreme Court because it has become increasingly negative to their rights, experts said at the Federal Bar Association's annual Indian law gathering in Albuquerque, New Mexico. In the last 20 years, tribes have lost 80 percent of the cases before the high court, according to one recent study.

"Court decisions seem to be shaping the trust doctrine on ad-hoc basis," said Jeanette Wolfley, an attorney for the Shoshone-Bannock Tribes of Idaho(*).

Rather than allow the trend to continue, Wolfley offered another avenue: the executive branch. She cited two presidential executive orders, signed during the Clinton administration, that require consultation with tribal governments and set the framework for individualized federal-tribal agreements.

"It is a way," she told attendees, "of helping to resolve some of the trust failings of the agencies."

That isn't the only option available, noted Reid Peyton Chamber, a former government official now in private practice. Although he just argued a case before the Supreme Court -- last month's Inyo County v. Bishop Paiute Tribe -- he said Congress is the best bet for success.

"I think we need to go with our strongest suit," he said, citing a host of federal laws that have reinforced tribal rights and ongoing work to address recent negative court rulings.

Not everyone is willing to cut the court system out of the process. Nearly 20 tribes around the country have filed breach of trust claims, citing mishandling of their assets.

John Berrey, chairman of the Quapaw Tribe of Oklahoma, said his case establishes a $100 billion liability on the government. "My tribe has the largest Superfund site in the United States on its tribal land as a result of the Department of Interior's mismanagement of our natural resources," he told the conference.

But as a member of a tribal-federal committee that looked at the way several Interior agencies carry out their trust responsibilities, he advocated reform within the department to address long-standing problems. "The bad news is that they do a terrible job," but the good news is that the system can be fixed, he argued.

Keith Harper, a Native American Rights Fund (NARF) attorney representing 500,000 individual Indians in the landmark Cobell case, outlined a two-pronged approach. First, he called on a federal judge to take over the Individual Indian Money (IIM) trust, worth $300 million to $500 million in annual assets, until it is fixed.

Second, he said, Congress should enact legislation to develop trust standards, clarify a right to sue for breach of trust and create an independent oversight commission. Tribes asked for all three during talks with the Bush administration but were rebuffed.

"It's very unlikely" that the legislation would pass, he said. "If you need the Department of Interior's consent, it will not happen."

Kevin Gover, who served as assistant secretary for Indian affairs during the last three years of the Clinton administration, said current plans to reorganize the Bureau of Indian Affairs (BIA) and the Office of Special Trustee (OST) are misguided. "I don't think the new administration is on the right track," he told attendees.

However, he too agreed that the BIA is the "only" agency that can reform itself -- as long as it has support from the legislative branch. "Congress is really the only one who can make change," he said.

*Ed. Note: Jeanette Wolfley is an attorney for the Shoshone-Bannock Tribes, not the Nez Perce Tribe as was previously stated.

Relevant Links:
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp

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