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THURSDAY, MAY 30, 2002

The Supreme Court meets today to consider taking its second Indian trust case of the term, one which tribal leaders fear could have wide implications.

In a highly secret process, the Justices will vote on the Bush administration's petition for writ of certiorari in a $600 million breach of trust dispute involving the Navajo Nation. The tribe prevailed at a federal appeals court last year, a victory that faces a reversal should at least four members of the Court move to grant the request.

Despite the high stakes, just how a case is accepted is never explained. In his 1987 book, The Supreme Court: How It Was, How It Is, Chief Justice William H. Rehnquist wrote: "Whether or not to vote to grant certiorari strikes me as a rather subjective decision, made up in part of intuition and in part of legal judgment."

More recently, Associate Justice Stephen G. Breyer tried to demystify some of the closed-door proceedings for tribal leaders. Before an audience whose members lamented judicial limitations on sovereignty, he told the National Congress of American Indians earlier this year that Indian law cases are among the most difficult to resolve because of the questions they pose.

"My job is to find an answer," he said.

The answer to the case at hand has been debated over several weeks. Attorneys for the federal government and the Navajo Nation traded arguments in a series of briefs, the most recent being a reply filed by the Department of Justice.

In the May 22 document, Solicitor General Ted Olson charged that the tribe tried to "recharacterize" the dispute in order to make the government look bad. "But for purposes of determining whether . . . the United States breached a fiduciary duty to the Tribe," he wrote, "the record . . . must be viewed in the light most favorable to the government."

Prior to that was an opposition brief the tribe lodged May 3. Navajo Nation attorneys replayed the dispute's long history, which included secret negotiations between then-Secretary of Interior Donald Hodel and Stanley Hulett, a personal friend, who was lobbying to ensure favorable mining royalty rates for Peabody Coal, the world's largest coal company.

"Honest consultation with, not deception of, Indian tribes is the cornerstone of the modern federal-tribal relationship," the tribe wrote.

A decision to accept or decline the case will be announced next week.

Related Documents:
Supreme Court Docket Sheet No. 01-1375 | DOJ Petition Brief | DOJ Reply 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

Related Stories:
Action due on Navajo trust case (5/20)
Court to decide limits of trust duty (4/23)
Bush wants Navajo ruling reversed (3/27)
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)