Indianz.Com > News > Supreme Court delivers more bad news to tribes

Supreme Court delivers more bad news to tribes
Tuesday, April 7, 2009
Filed Under: Law | Trust

The U.S. Supreme Court handed Indian interests another defeat on Monday by blocking the nation's largest tribe from pursuing a trust mismanagement claim against the federal government.

The decision in US v. Navajo Nation was blunt and to the point. After more than two decades of litigation and two trips to the high court, the justices said the Navajo Nation can't recover damages for a botched coal lease.

"Today we hold, once again, that the tribe's claim for compensation fails," Justice Antonin Scalia wrote for the court. "This matter should now be regarded as closed."

The unanimous holding was even embraced by Justice David Souter and Justice John Paul Stevens. In 2003, they were among the only three justices who said the tribe should be allowed to pursue a claim that the Interior Department violated its fiduciary duty by approving a coal lease with a less than favorable royalty rate.

This time around, Souter and Stevens had to concur with the majority, despite "regretting" that the earlier decision didn't go the way they wanted. Former justice Sandra Day O'Connor also sided with the tribe but she left the court in 2005 and was replaced by a more conservative Bush nominee.

The decision heralds the latest in bad news from the Supreme Court in 2009. The justices have so far ruled against Indian interests in three cases that were being closely watched by tribal advocates.

The first came on February 24, when the court in Carcieri v. Salazar restricted the land-into-trust process to tribes that were "under federal jurisdiction" in 1934. The decision has prompted a major tribal lobbying effort on Capitol Hill to amend the Indian Reorganization Act.

"Indian Country has only so many people that we can go to ... who will intercede on our behalf," Randy Noka, a council member for the Narragansett Tribe of Rhode Island, whose land-into-trust application was blocked by the decision, said during the winter session of the National Congress of American Indians last month.

The vote on the case was near unanimous, with eight justices agreeing on the 1934 issue. Some Indian law experts are now warning of negative impacts on criminal jurisdiction, Indian preference, tribal governance and other matters unless Congress enacts a "fix."

The second bit of bad news came just a week ago. On March 31, the court delivered a unanimous opinion in Hawaii v. Office of Hawaiian Affairs and ruled that a Congressional apology to Native Hawaiians does not protect the sale, transfer or exchange of their homelands by the state of Hawaii.

"I think Congress has to do something a little bit better to have that body represent all of us across this land," Santo Domingo Pueblo Gov. Everett Chavez said of the Supreme Court during NCAI's meeting last month. He said some of the justices have displayed "ignorant" attitudes on Indian issues.

No new Indian law cases have been accepted by the Supreme Court so far. But two petitions have been filed affecting religious rights in Navajo Nation v. U.S. Forest Service and sovereign immunity and federal liability in Marceau v. Blackfeet Housing Authority.

The Tribal Supreme Court Project, a joint effort of the Native American Rights Fund and the National Congress of American Indians, has been monitoring and coordinating Supreme Court litigation ever since the disastrous 2000-2001 term, when tribes lost all but one case.

Since the project started, fewer and fewer Indian law cases have been heard by the court. But that doesn't mean tribes have converted the court to their side -- only three of the post-2001 cases have gone in favor of tribal interests, a record that is reflective of a much longer trend.

"We know that from 1959 to 1987 or so, tribal interests won about 59 percent of their cases in the Supreme Court," Matthew L.M. Fletcher, the director of the Indigenous Law and Policy Center at the Michigan State University College of Law, wrote on the Turtle Talk blog. "That trend has reversed dramatically since then, dropping to about 25 percent since 1987."

The negative decision for the Navajo Nation could affect the tribe's federal racketeering lawsuit, which contends that executives from Peabody Energy conspired with Interior to deny the tribe a higher royalty rate for its coal. So far, the courts have kept the case alive despite repeated attempts by Peabody to have it dismissed.

Navajo Nation v. US:
Syllabus | Opinion [Scalia] | Concurrence [Souter]

Carcieri v. Salazar:
Syllabus | Opinion [Thomas] | Concurrence [Breyer] | Dissent [Stevens] | Concurrence/Dissent [Souter]

Hawaii v. Office of Hawaiian Affairs:
Syllabus | Opinion [Alito]