Supreme Court considers 'deception' of trust

WEDNESDAY, MAY 22, 2002

The Navajo Nation has urged the Supreme Court to reject the Bush administration's challenge to a $600 million royalty ruling.

In a brief filed earlier this month, attorneys for the tribe downplayed the national impact of their historic decision. Citing a "unique set of unrebutted facts," they asked the Justices to let stand a ruling which determined the federal government breached its trust by engaging in secret negotiations with the world's largest mining company.

"This case involves no Navajo 'second guessing' and no 'benefit of hindsight,' as the government suggests," the tribe wrote on May 3.

The filing in the dispute represents the culmination of a battle which, for the tribe, began during the Reagan administration in the 1980s. The tribe's leases with Peabody Coal were up for review and, based on direction from Congress, the Department of Interior was to guarantee a royalty rate of at least 12.5 percent.

The Bureau of Indian Affairs went a step further and confirmed a 20 percent rate, which Peabody immediately appealed. The company enlisted lobbyist Stanley Hulett, who in 1985 met behind closed doors with then-Secretary Donald Hodel, a personal friend, to try and overturn the new contract provisions.

An internal review process, however, upheld the more favorable terms. But this decision was kept from the tribe, whose leaders were then forced -- "facing economic pressure," according to an August 2001 federal appeals court ruling -- to accept the lower rate.

"The department was not advancing the policy respecting tribal self-government when it secretly conspired with Peabody to cheat the Navajo Nation," the tribe wrote in its brief. "Honest consultation with, not deception of, Indian tribes is the cornerstone of the modern federal-tribal relationship."

The Navajo case is being closely watched in Indian Country. In recent meeting with department officials regarding the reorganization of Indian trust duties, the appeal has been brought up as tribes fear the Supreme Court will impose limits on the extent of the government's obligations.

The acceptance of a dispute involving a breach of trust to the White Mountain Apache Tribe of Arizona has heightened worries. The Court could join the two appeals and issue a new mandate that undermines the framework of previous rulings and threaten numerous breach of trust lawsuits that tribes have filed in recent years.

Tribal leaders will soon find out the fate of the Navajo case. The Supreme Court has scheduled action this month and will announce if it will accept the Bush administration's petition for writ of certiorari.

Related Documents:
Supreme Court Docket Sheet | DOJ Brief

Related Decisions:
NAVAJO NATION v. US, No 00-5086 (Fed Cir. August 10, 2001)

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