Monday, 02 December 2002

U.S. Seeks to Curb Indian Lawsuits
by ROBERT GEHRKE, Associated Press Writer

WASHINGTON (AP) - The Bush administration asked the Supreme Court on Monday to limit lawsuits filed by American Indian tribes contending the Interior Department failed to protect tribal resources.

Otherwise, the government, which manages 56 million acres of land for the benefit of tribes, could subject the government to a mountain of lawsuits, argued assistant solicitor Gregory G. Garre.

"That would be an enormous potential liability that there is no indication that Congress ever intended to assume," he said.

Specifically, Garre said the court should reverse two appeals court rulings that found the government liable for damages for violating implied responsibilities to the tribes.

In one, the Navajo Nation alleges a former Interior secretary colluded with a coal company to deny the tribe tens of millions of dollars in royalties from coal mined from Navajo land. In the other, the White Mountain Apache Tribe of Arizona contends the Interior Department should pay to repair historic buildings Congress allowed the government to use on condition they be given to the tribe when the government doesn't need them.

Appeals courts said the government was liable for damages as high as $600 million in the Navajo case and $14 million in the White Mountain instance.

The government's responsibility to act as a trustee and protect the interests of American Indian tribes is a cornerstone of Indian law based on treaties with tribes and recognized by Congress and courts for 170 years.

That could be redefined by the current cases, said David Getches, a professor specializing in Indian law at the University of Colorado. Getches said Indian tribes prevail in the current Supreme Court about one-fifth of the time, less than any other group.

The cases could also affect other breach of trust cases, including a class-action suit filed in Washington, alleging the government squandered tens of billions of dollars in royalties from land owned by 350,000 American Indians nationwide.

In the Navajo case, the tribe had sought in 1984 to renegotiate a 20-year-old coal lease with Peabody Energy, raising the royalty from less than 1 percent to 20 percent of proceeds. Interior Department studies said the rate increase was appropriate.

An assistant secretary was about to set the royalties at 20 percent, but then-Interior Secretary Donald Hodel blocked the adjustment after meeting with a friend who had been hired by Peabody as a lobbyist. The tribe later settled for a 12.5 percent royalty.

Navajo attorney Paul E. Frye said Hodel "colluded with Peabody to swindle the Navajo Nation," a violation of his trust obligation.

But Justice Antonin Scalia said the secretary is only obliged to make sure the royalty rate is higher than the minimum set by law.

Scalia also seemed unswayed by the White Mountain arguments that the Interior Department should be responsible for upkeep on the old Fort Apache buildings that Congress had arranged to be given to the tribe once the government was through with them.

Millions have been spent repairing the buildings, but an estimated $8 million in work remains, including fixing basketball-sized holes in the ceiling of one building, said White Mountain Apache attorney Robert C. Brauchli.

Garre argued Congress did not direct the government to maintain the buildings, but Justices Sandra Day O'Connor and John Paul Stevens questioned if that meant the government could destroy them without consequences.

"I would have thought there might well be a duty for the United States government here acting as trustee not to lay waste to the property," said O'Connor, an Arizona native.

Garre said if the buildings were destroyed, the tribe could sue, but could not claim damages because the government failed to meet its trust duties.

The cases are U.S. v. Navajo Nation, 01-1375, and U.S. v. White Mountain Apache Tribe, 01-1067.

On Monday, the court also agreed to decide if police officers can search tribal businesses for evidence of criminal activities off the reservation. The case was brought by Inyo County, Calif., and a dozen other states, after the Bishop Paiute Tribe resisted search warrants for records of three casino employees the county said were falsely claiming welfare benefits.

The 9th U.S. Circuit Court of Appeals sided with the tribe. In June 2001, the Supreme Court said state authorities may enter an Indian reservation to investigate or prosecute off-reservation violations of state law.

The case is Inyo County v. Paiute-Shoshone Indians, 02-281.

2002-12-02 21:22:44 GMT

http://news.findlaw.com/ap_stories/a/w/1154/12-2-2002/20021202133012_55.html