Supremely bad trend continuesIt’s only fitting that the latest bad U.S. Supreme Court decision regarding Indian law would begin with an awkward and offensive phrase, written by Justice Antonin Scalia to describe the plaintiff. “For over 15 years, the Indian Tribe known as the Navajo Nation has been pursuing a claim. …,” he wrote in the opinion.
The decision in the Navajo trust litigation represents the second time this same dispute has come to the Supreme Court, despite the court’s apparent indifference toward Indian issues. That in itself is noteworthy, as the Supreme Court allows appeals in fewer than five percent of all cases presented to it. A lower federal court ruled in favor of the Navajo Nation, perhaps because it was appalled by the conduct of the Interior Department. The facts in this case included evidence of collusion between Peabody Coal and then-Interior Secretary Donald Hodel to limit the royalty rate paid to the Navajo Nation for its coal reserves, resulting in a “negotiated” lease price they knew was considerably lower than what the tribe had originally proposed and was too close to getting. The Navajo Nation considered the trustee responsibility on the part of the United States breached. But Justice Scalia focused on the governing law of Navajo I, the Indian Minerals Leasing Act of 1938, the court distinguished between a fiduciary obligation on the part of the federal government and a “limited approval role” under the IMLA. In the background, Scalia reiterates the standard set in Navajo I, which stated the tribe “must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” The court decided that unless the trust responsibility is specified in statute or law, then it doesn’t exist as an obligation on the federal government, leading it to say that “neither the Government’s ‘control’ over coal nor common-law trust principles matter.” With no obligation to act as a trustee, does this mean the government has the presumption of authority, but with no responsibility? It is an ominous question, one that is likely to fuel debate on the federal-tribal trust relationship. Navajo Nation President Joe Shirley Jr. wants one thing to be understood, and it’s that the court in its ruling did not deny wrongdoing by the United States. Instead, it decided using the set of laws presented. “The reason why the U.S. Supreme Court, as I understand it, didn’t go along with it was that the wrong set of laws was used to bring that lawsuit. Within the IMLA, the federal regulations, I don’t believe, give a provision to pay damages if there was a wrong done in any of the leasing. That is the reason why, I believe, that the U.S. Supreme Court did what it did.” The legal outcome of this case was no surprise, given the conservative composition of the court. Having exhausted its 15-year quest for an honorable resolution in the court system, the Navajo Nation may be well-served by pursuing a political solution. Certainly, the nation has cultivated good relations with the current U.S. federal administration. As an early supporter of then-candidate Barack Obama, the Nation enjoys a constructive relationship with the president. Obama has nominated several Native Americans for appointments within his administration, some at the highest levels of the federal government. Interior Secretary Ken Salazar has made numerous pledges to work with tribes on a government-to-government basis (although some feel he committed a misstep last month when he said the outcome of a federal appeal could lead to a settlement of the ongoing Cobell trust case.) Lastly, but maybe most fruitful, is Obama’s recent nomination of a new solicitor for the Interior Department, Hilary Tompkins, a Navajo. Developing and pursuing strategy toward a political solution may breathe life into a matter Justice Scalia declared “closed.” It looks like the Navajo Nation may take that route, if President Shirley has his way. In response to the decision he said, “Just because the U.S. Supreme Court said we need to stop, I don’t think so.” |
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Wednesday, Apr 29 at 12:40 AM Anonymous wrote ...
The loss reflects the weakness of the Navajo Nation's claims. Remember, all 9 Justices -- liberal and conservative -- ruled against the Navajo. Also, there are strong indications in the court record that the Nation played too fast and loose with the facts by claiming not to know anything of a meeting between Interior Secretary Hodel and a lobbyist from Peabody Coal. Internal Navajo documents disclosed after the first Supreme Court case show the Navajo knew of it but represented otherwise.
20379461Tuesday, Apr 21 at 1:41 PM quinaultbob wrote ...
Todays headline: Bailout 20 probes look into possible fraud ... The report underscores just how complicated the bailout program has become. What started out in Octover as a $750 Billion effort to buy only toxic securites has morphed into 12 programs that cover $3 TRILLION in direct spending,loans and loan guarantees . Today banks, insured,brokerages, auto companies, car-parts makers and homeowners are only some of the beneficiaries of the program, known formally asthe troubled asset TARP.
19954462Friday, Apr 17 at 5:54 PM Wise Guy wrote ...
When did the Native Nations consent to the Supreme Court? When we will wake up and stop playing their game and come full circle to play our own game again. The Nations need to establish their own Intertribal Supreme Court founded upon our socities laws and values which protects our interests. When the Japenese surrendered, they kept their military, but called it a National Police force to usurp a treaty clause. Israeli citizens serve a couple of years in their military. We should do the same!
19801372Thursday, Apr 16 at 12:02 PM tseligaii wrote ...
i disagree with the us supreme court on just about everything indian. does the phrase 'consent of the governed' ring any bells? one way to show there is no consent to be governed is to email us supreme court and tell them they have made a serious mistake. will it work to change decision already made? i doubt it. but being told of a mistake is better than not being told of it at all.
19698337Tuesday, Apr 14 at 2:43 PM Dine' 007 wrote ...
There is no justice left in SCOTUS. End the coal leases, cut the power off to the bilagaana. Maybe then they'll get a grasp of the true price of justice.
19571822Tuesday, Apr 14 at 1:59 PM Smallbear wrote ...
Justice Scalia is one of those conservatives who believes the US government has no responsibilities to anyone except the corporations. President Joe Shirley Jr. will be very disappointed if he really believes the SCOTUS, under its current makeup would ever give ground on this issue. The Obama administration may make a difference, but please don't stop trying. The Navajo people, and the land, deserve much better than they are getting.
19569817Tuesday, Apr 14 at 10:12 AM WAMP1 wrote ...
don't stop now thats what the Goverment wants you to do it may take 50 years but keep the noise and the attention going it belongs to you
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