02 December 2002

Washington Post - http://www.washingtonpost.com

A Tale of Two Reservations

By Charles Lane When the U.S. government needed their help during the days of the Old West, members of the White Mountain Apache Tribe served as scouts in the Army's war against other Apaches led by Geronimo. Soldiers and Indians operated from a legendary outpost in Arizona known as Fort Apache.

In more recent times, however, the White Mountain Apaches have come to feel a measure of betrayal by their erstwhile ally.

Specifically, they say the federal government has broken a promise it made in a 1960 law to preserve and maintain the structures of Fort Apache, which are now located on the White Mountain Apaches' reservation in eastern Arizona and whose value as a tourist attraction the tribe wishes to enhance.

But it would cost about $14 million to fix up the aging buildings, and the tribe is suing the federal government for breach of trust, saying the 1960 law required it to do the upkeep.

The Apaches' case, U.S. v. White Mountain Apache Tribe, No. 01-1067, is one of two similar matters pitting Native American tribes against Washington that will be argued at the Supreme Court today.

The other, U.S. v. Navajo Nation, No. 01-1375, involves a claim by the Navajo Nation that the Department of the Interior colluded with a major coal company to deny the tribe millions of dollars in royalties for letting the company strip-mine coal on the impoverished Navajo reservation that spans 25,000 square miles of Arizona, New Mexico and Utah.

Lawyers for the tribes and for the government have told the court that its decisions will help define the terms under which the government owes Native Americans a duty to manage their reservations in the tribes' best interests -- and the rules under which the government is liable for damages if it fails to do so.

Perhaps it is only fitting that the court should spend its first day of oral argument after Thanksgiving -- a holiday on which Americans celebrate the cooperation between Indians and Pilgrims that enabled Plymouth colony to survive -- reflecting on the trouble that characterized the later relationship between the United States and the country's original inhabitants.

Several members of the court are history buffs, and they should be intrigued by two cases peppered with the names of famous people and places from the era of U.S. westward expansion.

The U.S. Army built Fort Apache at the confluence of the north and east forks of the White River in 1870. Seven years later, as one of his final acts in office, President Ulysses S. Grant established it and the surrounding 7,500 acres as a military reservation.

The soldiers finally subdued Geronimo and shipped him and his followers to Florida in 1886. In 1897, Congress finalized the boundaries of a reservation for the White Mountain Apaches. In 1923, legislators converted Fort Apache into the Theodore Roosevelt Indian School, keeping it as federal property.

In 1960, Congress changed the arrangement slightly, declaring that the Fort Apache complex, consisting of about 30 buildings, would "be held in trust for the White Mountain Apache Tribe," subject to the right of the interior secretary to use any of it for the school.

In 1976, the Fort Apache Historic District was designated a national historic site. In 1993, the White Mountain Apaches, who also operate a ski resort and casino on their reservation, drew up a plan to fix up the Fort Apache site, which was growing in popularity among tourists.

In 1999, when they learned of the $14 million price tag, the Indians sued the federal government for that amount, plus other damages, for allegedly "breaching its fiduciary duty to maintain, protect, repair and preserve" the site.

The Court of Federal Claims in Washington dismissed the suit. But last year, the U.S. Court of Appeals for the Federal Circuit sided with the Indians, and the Bush administration appealed to the Supreme Court.

The federal government's argument is that the 1960 law ordering Fort Apache held in trust did not say that it was to be held for the benefit of the White Mountain Apaches -- rather, it said that the secretary could continue to use it for governmental purposes. Thus, the government argues, it never intended to subject itself to suit for allegedly failing to meet specific duties. To decide otherwise, the government argues, could expose federal taxpayers to a flood of costly litigation.

The government makes similar arguments in the Navajo case, which dates to 1938, when Congress passed a law saying native tribes had the right to negotiate mineral leases under the tutelage of the interior secretary and subject to the secretary's veto.

In 1964, the Johnson administration -- acting, the Navajo now say, through a pliant tribal council -- arranged and approved a lease with Peabody Coal Co. to mine high-quality coal in return for a royalty of 37.5 cents a ton. In 1978, an Interior Department study showed that the Navajo had received just $2.7 million for coal resold by Peabody for $141 million.

Navajo leaders began pushing to renegotiate. In 1985, after the 1964 lease had lapsed, a Bureau of Indian Affairs official suggested raising the royalty to 20 percent.

The Indians say they were never notified of this but Peabody was. They say Peabody hired a close friend of then-Interior Secretary Donald Hodel, an appointee of President Ronald Reagan, to lobby Hodel for a chance to negotiate a lower royalty.

The Navajo were never told of the lobbyist's meeting with Hodel. Afterward, the secretary sent the two sides back into protracted negotiations that ended in 1987 with the Navajo, who say they were under intense economic pressure, settling for 12.5 percent.

In 1993, the Navajo sued the federal government for $600 million for breach of trust. The Court of Federal Claims ruled in favor of the government in 2000.

But last year, the U.S. Court of Appeals for the Federal Circuit sided with the Navajo, invoking its own decision in the White Mountain Apache case and noting that "it cannot be reasonably disputed that [Hodel's] actions were in Peabody's interest and contrary to the Navajo's interest."

Both of today's cases could turn on how the court compares and contrasts them with its decision in two cases from the early 1980s involving Quinault Indian timberlands.

In 1983, the court held that the government had breached a trust with the native tribe that was clearly spelled out in a statute or in regulations.

In a sense, then, the question is just how specific the government's promises to Native Americans were in the 1960 law that gave the government control of Fort Apache and in the 1938 law that gave it veto power over Indian mineral leases.