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FRIDAY, AUGUST 9, 2002

The federal government cannot be sued by tribes for alleged breaches of trust unless Congress adopts clear standards, the Supreme Court has been told.

The mere existence of the Indian trust relationship does not authorize lawsuits against the United States, Solicitor General Ted Olson argued recently. Last month, Olson submitted a brief to counter a $14 million claim by the Mountain Apache Tribe of Arizona.

"The United States fully accepts the implications of that relationship and the undertakings that go with it," Olson wrote on July 5. "Not all those undertakings, however, create legally enforceable duties on the part of the United States, much less duties that are enforceable in a suit for money damages against the United States."

The tribe, whose reservation and economy was recently devastated by the worst fire in Arizona history, wants money to repair a number of crumbling buildings located on an historic fort. A federal appeals court approved damages based on a common law trust standard known as "permissive waste."

The tribe asserts that its trustee -- the Department of Interior -- allowed the property to fall into disrepair.

But top officials, and the Department of Justice, dispute the extent and nature of the standards. Although the Interior has adopted a manual to guide its trust responsibilities, the Clinton-era document is not legally enforceable.

For that reason, tribes are pushing Congress to make the principles into law. A draft bill has been circulated and has support in Indian Country.

"Congress should act now to enact the legal standards the department must follow," National Congress of American Indians President Tex Hall told the Senate Indian Affairs Committee recently.

Interior officials have not stated publicly any opposition to the proposal. "Congress always has the power to act," Deputy Secretary J. Steven Griles said at the July 30 hearing.

Former Interior official Kevin Gover agrees the bill should be a top priority because the Supreme Court is likely to issue a negative ruling in the Apache case and a similar one affecting the Navajo Nation, who claim a $600 million breach of trust. "That is the greater danger right now," he said in an interview.

"It would be a great betrayal," if the bill failed to clear the White House, he added.

The two cases will be heard in tandem during the Supreme Court's October 2002 term but no date has been scheduled. A separate brief is being submitted by Olson in the Navajo case.

The tribes will each get a chance to respond. No friend of the court briefs were reported on the docket sheets for the cases as of this week.

Relevant Documents:
Supreme Court Docket Sheet: No. 01-1067 | DOJ Response Brief (April 5, 2002) | DOJ Petition Brief (January 15, 2002) | DOJ Merits Brief (July 5, 2002)

Related Decisions:
White Mountain Apache Tribe v. US, No 00-5044 (Fed Cir. May 16, 2001)

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

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