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MONDAY, APRIL 14, 2003

Recent Supreme Court rulings on the federal trust responsibility will not stand the test of time, a leading Indian law expert said last week.

Reid Peyton Chambers, a former government official now in private practice, blamed the court's lack of consistency on its deep divisions. Speaking at an Indian law conference in Albuquerque, New Mexico, he said the court's trust decisions defy logic and fact.

"The Supreme Court is not always right," he said on Thursday. "We know that. We've dealt with heartbreaking decisions in Indian law in the last 15 or 20 years."

Chambers singled out last month's Navajo Nation decision in which the justices struck down a $600 million breach of trust claim. He said the court ignored clear evidence that the Department of Interior cheated the tribe out of its coal royalties.

"What happened in the Navajo case was a shame," he said of secret meetings between a former Interior secretary and an industry lobbyist. "Any child knows that that's shameful."

Agreeing with the sentiments was Dan Rey-Bear, an attorney who worked on the Navajo Nation's case. Although he wasn't speaking on behalf of the tribe, he cited ten major "deficiencies" with the court's March 4 ruling and said the court's six-member majority wrongly pitted the federal trust responsibility against tribal self-determination.

Indian law commentators have criticized the Navajo ruling but they point out that court did not disturb two important precedents outlined by the Mitchell I and Mitchell II cases of the early 1980s. When read with a decision in favor of the White Mountain Apache Tribe's $14 million claim, they said the outcome was not as bad as some feared.

"It was clearly the government's hope that the Supreme Court would go back and do something to Mitchell," argued Howie Arnett, an attorney who won a recent $14 million award for the Warm Springs Tribes of Oregon.

In 2001, the Bush administration asked the Supreme Court to review the Navajo Nation and White Mountain cases, charging that lower courts wrongly extended the Mitchell framework. But Aurene Martin, the acting assistant secretary for Indian affairs, said last month's rulings won't have a major impact.

"Both those cases are of limited effect because every case is so fact-specific with regard to the tribe that's involved and the statutory scheme that we're going to be analyzing," she told conference attendees.

While the Navajo Nation's claim against the United States has ended, the tribe is continuing its suit against Peabody Energy, the largest coal company in the world. An appeals court today will hear oral arguments affecting how the case will proceed.

With its 5-4 decision in hand, the White Mountain Apache Tribe is also returning to court to collect the money it is owed. The tribe is trying to protect an historic fort on the reservation from waste.

The Bush administration has appealed the Warm Springs award while at the same time seeking a delay. Depending on its stance, the Department of Justice will finally submit an opening brief to the Federal Circuit Court of Appeals this month or next, nearly a year after the judgment was handed down.

Supreme Court Excerpts:
Apache Tribe| Navajo Nation

Supreme Court on Navajo Nation:
Syllabus | Opinion [Ginsburg] | Dissent [Souter]

Supreme Court on White Mountain Apache Tribe:
Syllabus | Opinion [Souter] | Concurrence [Ginsburg] | Dissent [Thomas]

Related Decisions:
Mitchell I: UNITED STATES v. MITCHELL, 445 U.S. 535 (1980)
Mitchell II: UNITED STATES v. MITCHELL, 463 U.S. 206 (1983)

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