FROM THE ARCHIVE

Bush wants Navajo ruling reversed

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WEDNESDAY, MARCH 27, 2002

The Bush administration has asked the Supreme Court to overturn a landmark $600 million trust fund claim won by the Navajo Nation for fear other tribes will file similar challenges.

Charging that "significant" resources are at stake, the Department of Justice this month called on the nation's highest court to throw out an August 2001 ruling made in the tribe's favor. Unless the lower decision is reversed, the Bush administration says the government could face "adverse consequences."

"The decision below will encourage the filing of damages claims against the United States for breach of trust," Solicitor General Ted Olson writes in his March 15 brief. "At a minimum, such a development will subject the United States to costly litigation."

At issue are Navajo tribal leases with Peabody Coal, which has mined Navajo and Hopi lands since the 1960s. All sides in the dispute, including the Department of Interior, agree a 12.5 percent royalty rate contained in the agreements is far below accepted market value for the coal.

But the Bush administration disputes the notion that it has a trust responsibility to ensure better returns. The Navajo Nation cannot point to any specific law which imposes such a higher duty, Olson claims.

In arguing the case in the lower courts, the tribe has countered that underhanded dealings of the Reagan administration show the government has violated its obligations. Specifically, the tribe points out then-Secretary Paul Hodel in 1985 held secret meetings with a Peabody lobbyist, Stanley Hulett, who happened to be a personal friend.

Without knowledge of the discussions, the tribe was subsequently encouraged to work with the company to come to a resolution. Additionally, it was never disclosed that the Bureau of Indian Affairs approved more favorable 37.5 percent rate after a standard internal appeals process.

As a result of the "suppressing and concealing" by government officials, the tribe was forced to accept the lower rate "facing economic pressure," wrote the Federal Circuit Court of Appeals in a 2-1 decision. The appeals panel said a lower court must determine exactly how much the tribe is owed.

A dissenting voice, however, said the tribe could only be awarded limited damages. Unlike Olson, all three judges agreed a trust relationship existed but U.S. District Judge Lawrence M. Baskir said it doesn't "mandate monetary relief."

Coupled with a case involving the White Mountain Apache Tribe, the request for the Supreme Court's intervention represents the Bush administration's attempt clarify what it considers the federal circuit's departure from trust law. The appeals court has issued decisions which could force payouts in addition to the Cobell class action affecting individual Indians.

For the Navajo Nation, the case has represented victory after nearly a decade of litigation, including an initial negative decision by a federal judge. With the presence of former Reagan appointees, including Ross Swimmer and Deputy Secretary J. Steven Griles, in the current administration, the dispute has gained added fire among tribal officials who have vehemently opposed Secretary Gale Norton's proposal to reorganize Indian trust duties.

The Navajo Nation's attorney will be filing a response, due April 18, to the government's petition for writ of certiorari.

Relevant Documents:
DOJ Brief (March 15, 2002) | NAVAJO NATION v. US, No 00-5086 (Fed Cir. August 10, 2001)

Only on Indianz.Com:
Supreme Court considering Indian cases (2/19)

Relevant Links:
The Navajo Nation - http://www.navajo.org
Peabody Energy - http://www.peabodyenergy.com

Related Stories:
Court rules Navajo Nation owed money (8/14)
Apache Tribe wins trust case appeal (5/17)
Tribe wins trust case appeal (5/14)
Peabody mining protested (4/3)
Peabody defends water usage (3/26)