Panel reacts to Supreme Court trust cases

WEDNESDAY, DECEMBER 4, 2002

A group of Indian law experts expressed surprise on Tuesday at the reception the Supreme Court gave to two tribal trust mismanagement cases.

At a panel discussion in Washington, D.C., the attorneys and scholars said the oral arguments that took place on Monday were not what they expected. They walked away believing the White Mountain Apache case was much stronger than the Navajo Nation one, a view they did not hold before.

"I came into this thinking White Mountain Apache didn't have a chance, recalled Harry R. Sachse, a former Department of Justice attorney who now works in private practice for tribes. "The arguments looked like it was going exactly the opposite way."

Arlinda Locklear, another attorney in private practice, was the first Native woman to argue before the Supreme Court -- she won the case on behalf of the Oneida Nation of New York. She said the facts surrounding the White Mountain Apache Tribe's claim to fix crumbling buildings were "at least as compelling" as the Navajo Nation's breach of trust allegations.

But like others on the panel, she believed the "egregious conduct" of government officials in the Navajo dispute made it stand out. "All of us walked away amazed," she said. "The Court seemed to have the opposite perception."

The discussion came in response to two hours of arguments for what will be the most highly anticipated decisions of the coming year. The justices considered whether the tribes have a right to sue the United States for breach of trust responsibilities.

David H. Getches, a professor at the University of Colorado Law School was worried about a negative ruling. "We have a record in this Supreme Court that isn't favorable to Indian tribes or Indian interests," he said.

Charles A. Hobbs, who is in private practice, argued and won 1983's Mitchell Supreme Court decision that paved the way for the claims at issue. The worst scenario, he said was that his victory would be overturned. But he added: "The government hasn't asked for that and that's not going to happen."

The panel remained somewhat optimistic about the outcome. Jim Simon, a former deputy assistant attorney general who handled Indian litigation, predicted a "fairly favorable" decision and said both cases would return to the lower courts for further consideration.

Sachse surmised that the Apache Tribe would win and that Justice Sandra Day O'Connor, who grilled the government lawyer during the argument, would write the opinion. On the other hand, he said the Navajo Nation was "more likely" to lose.

Getches was similarly concerned about the Navajo case and predicted a 6-3 decision against the tribe. He said the Apaches would win but on a narrow 5-4 split.

Locklear also predicted a 5-4 victory for the Apaches. "It's still possible we can pull of a victory here," she noted. As for the Navajo, she said it could go either way, although she added: "The tide is against them."

Hobbs thought both tribes could win but was worried the Navajo Nation might lose for a "trumped up reason." "I don't think that's going to happen either," he said.

A decision is expected by summer 2003.

Relevant Links:
U.S. Supreme Court - http://www.supremecourtus.gov
White Mountain Apache Tribe - http://www.wmat.nsn.us
Navajo Nation - http://www.navajo.org