A matter of trust, and a decades-old 'folly'

TUESDAY, JUNE 4, 2002

The Court finds that the United States violated the most fundamental fiduciary duties of care, loyalty and candor. -- U.S. District Judge Lawrence M. Baskir. Navajo v. U.S. February 4, 2000.

It's not always easy for a government official to remember what happened a decade ago. But it's not so hard to recall what didn't.

Just ask former Secretary of Interior Donald P. Hodel. When confronted with a 1985 meeting secretly held with a lobbyist and personal friend who represented a company opposed to a coal agreement with terms favorable to the Navajo Nation, he offered up this explanation under oath.

"The decision-maker isn't suppose [sic] to talk to one of the two sides while he is in the process of making a decision or may be in the process of making a decision," he said.

The reason, he added, "goes to fundamental fairness." Calling such meetings "folly," he said in his 1995 sworn deposition that he "expect[s] people who dealt with me inside and outside the Department [of Interior] would have known that I would have been pretty firm on that as a matter of practice."

The inference was that the meeting with Stanley Hulett, a lobbyist for the world's largest mining company, didn't happen because it wasn't conceivable. The Reagan administration never engaged in "folly," Hodel said ten years later.

U.S. District Judge Lawrence M. Baskir of the Federal Court of Claims, agreeing with the Navajo Nation, thought otherwise. Government memoranda, which were kept hidden from the tribe for 11 years, and documents belonging to Peabody Coal, the company which has mined Navajo and Hopi lands since the 1960s, supported the tribe's characterization of the events as pure "deception."

"Although Mr. Hodel�s memory fails him on this point, the evidence is overwhelming that he did what he condemns," wrote Baskir.

The ruling was clear: the United States didn't live up to its trust responsibilities. "We conclude that the defendant, acting through former Secretary Hodel, violated the most basic common law fiduciary duties owed the Navajo Nation," Baskir wrote.

But, in what was then a setback for the tribe, Baskir said there was no law, treaty or otherwise on the books which would allow the tribe to collect money -- up to $600 million -- for the misdeeds. "Regrettably, we also conclude that the trust relationship necessary for our jurisdiction does not exist, and these violations do not mandate monetary relief, both as required by our jurisdictional precedents," he added.

That distinction, which was noted by a dissenting federal appeals court judge whose peers subsequently found reason to award the tribe damages, is what the Bush administration is banking on the Supreme Court to seize upon when it hears the dispute in what could be one of the most anticipated Indian law cases in years.

But perhaps more importantly, the case highlights an often-ignored truth about the Indian trust relationship: it exists largely only when the United States says it does. Without specific laws, regulations or mandates, whether the government owes anything to a tribe depends on what Solicitor General Ted Olson, a Bush appointee, called a "threshold" question in briefs filed this year.

Or, as some tribes might hope, a sympathetic judge. "Implicated in every instance is the delicate balance struck between exercising fiduciary responsibilities and respecting tribal sovereignty and self-determination," wrote Baskir last year.

Whether that exists in the dispute at hand and another one affecting the White Mountain Apache Tribe of Arizona is now in the hands of the Court. In what will likely turn out to be a testy decision worthy of last year's Nevada v. Hicks case, the Justices are set to hear arguments later this year.

Relevant Documents:
Donald Hodel Memos

Relevant Links:
The Navajo Nation - http://www.navajo.org
U.S. Supreme Court - http://www.supremecourtus.gov