Fate of trust in Supreme Court hands

MONDAY, APRIL 22, 2002

Update: The Supreme Court accepted the case today.

The Supreme Court is set to announce today whether it will accept a case the Bush administration has pitted as pivotal to the future of the Indian trust.

In legal briefs filed in recent weeks, the Department of Justice has traded barbs with the White Mountain Apache Tribe of Arizona. The tribe contends the federal government has an obligation to fix crumbling school facilities and other buildings located on an old Army fort.

The Department of Interior has resisted, saying it only has a limited responsibility. Charging that a federal appeals court overstepped the boundaries of the Indian trust by ruling in favor of the tribe last year, Solicitor General Ted Olson wants the Supreme Court to set clear standards.

"The Court should . . . provide needed guidance on when the United States may be liable in damages for breach of an alleged trust responsibility owed to an Indian tribe," Olson wrote on April 5.

Yet as is often the case, the heart of the matter is less about rules than about money. The tribe argues it will take $14 million to to repair the crumbling site, an amount which seems unlikely to break Uncle Sam's piggy bank.

But Olson says the tribe's victory paves the way for more costly tribal claims. He cites the Navajo Nation's $600 million lawsuit, which is also up for appeal, as proof.

Robert Brauchli, an attorney for the tribe, disputes the notion in his March 22 brief. "The government attempts to grab the attention of this Court with alarmist predictions," he wrote.

Olson, not surprisingly, was unconvinced. "The tribe fails in its attempt to downplay the importance of this case," he responded.

Should Olson's arguments prove convincing, the Apache dispute would be the first Indian law case accepted by the Supreme Court this term. So far, a number of tribal cases have been rejected, which bodes well given the negative rulings Indian Country has seen.

For the Apache Tribe, accepting the case could prove detrimental, according to Brauchli. Unless the government lives up to its duties, he says the fort will suffer a worse fate.

"There is no doctrine in American Indian law which allows the United States," he wrote, "to take and use Indian trust property and then transfer the property back to the tribe in a totally wasted state."

"Yet that is what the government would have this Court approve."

Related Documents:
DOJ Response Brief (April 5, 2002) | DOJ Petition Brief (January 15, 2002) | White Mountain Apache Tribe v. US, No 00-5044 (Fed Cir. May 16, 2001)

Only on Indianz.Com:
Supreme Court considering Indian cases (2/19)
Apache Tribe wins trust case appeal (5/17)

Relevant Links:
White Mountain Apache Tribe - http://www.wmat.nsn.us