Prof. Todd Henderson (Chicago) on Arizona v. Navajo Nation

Prof. Todd Henderson (Chicago) on Arizona v. Navajo Nation


I am delighted to report that we’ll have two objects on this June 2023 Supreme Court docket case as we speak, each from individuals who know an amazing deal about Indian regulation; sadly, I do know little or no concerning the topic, however I do know it is necessary, and I am glad to have an opportunity to cross alongside these things. First, from Prof. Todd Henderson (Chicago):

The scope of the federal authorities’s belief obligation is the topic of centuries-old dispute, beginning with the truth that the Supreme Court docket simply made it up out of complete material. It began with a homicide.

In 1830, George Corn Tassel, a Cherokee, killed Sanders Speaking Rock Ford, one other Cherokee, inside the boundaries of the Cherokee Nation, in what’s now Georgia. Georgia prosecuted Corn Tassel, and a jury of twelve non-natives convicted him. Represented by former Legal professional Common of america, William Wirt, the Cherokee appealed to the Supreme Court docket, which issued a keep pending attraction.

On Christmas Eve, Georgia defied the Court docket and hanged Corn Tassel. Within the face of Georgia’s defiance, the Supreme Court docket took up the query of whether or not it had unique jurisdiction to listen to a problem by the Cherokee Nation towards the enforcement of the legal guidelines of Georgia on Cherokee land.

Answering within the unfavorable in Cherokee Nation v. Georgia, Chief Justice Marshall declared the Cherokee Nation not a overseas nation, which might thus carry disputes between it and a state inside the Court docket’s unique jurisdiction, however somewhat a “home dependent nation.” Going unnecessarily additional, Marshall baldly declared Indian tribes to be “in a state of pupilage” and describing “their relation to america” as “a ward to his guardian.” That is the origin of the “belief” obligation, which is the animating power behind two centuries of Indian coverage and is the touchstone of all actions by the federal authorities as we speak.

The federal authorities has been a awful trustee. The historical past is replete with abuses by Indian brokers charged with implementing federal insurance policies to satisfy its belief accountability, which led to hunger, homicide, struggle, and expropriation of land and different assets.

The Bureau of Indian Affairs has additionally tried to stamp out Indian tradition via the years, from the trivial, equivalent to banning lengthy hair and sure dances, to the monumental, such because the kidnapping of Indian youngsters to have them (re)educated at boarding faculties.

Lest one suppose that is all prior to now, contemplate the litigation concerning the authorities’s administration of accounts for particular person Indians, whose property was leased out by the federal authorities. Beneath the belief obligation, Indians aren’t typically permitted to promote, lease, or lease their property with out the permission of the federal authorities. Accordingly, the Bureau of Indian Affairs, as trustee, will enter into contracts with firms wishing to take advantage of the assets of Indian lands, equivalent to timber or oil pursuits, holding any lease funds in particular person accounts.

This was the trustee’s promise. For many years, bureaucrats held the monies in these accounts hostage, requiring Indians to beg for disbursements to purchase fundamental objects. Trustees embezzled the cash or overcharged Indians, receiving kickbacks from in-cahoots retailers. Many hundreds of thousands went lacking and Indians had been infantilized.

Frustration finally led to litigation—in 1996, Eloise Cobell, treasurer of the Blackfeet tribe, sued for an accounting of so-called Particular person Indian Cash Accounts. If you wish to see authorities at its most inept, learn Choose Royce Lamberth’s 1999 resolution in Cobell v. Babbitt, through which he said that “[i]t could be tough to discover a extra traditionally mismanaged federal program than the Particular person Indian Cash (IIM) belief.”

The litigation dragged on for fourteen years. The federal government couldn’t produce any coherent information for over 300,000 IIM accounts. A number of Inside secretaries had been held in contempt for failure to adjust to court docket orders to supply information and to cease destroying proof. Congress finally settled the case for $3.4 billion, making the case the most important ever received towards the federal authorities.

The Supreme Court docket created this mess, however it has been reluctant to attempt to repair it. The tribes have come to the Court docket from time to time urgent claims that the federal authorities has been a awful trustee.

As an example, in a 2009 case, United States v. Navajo Nation, the declare was {that a} lease to mine coal on Navajo lands entered into on their behalf by the Secretary of the Inside was corrupt. The preliminary royalty charge negotiated with the Peabody Coal Firm in 1964 was too low and when it was renegotiated in 1984, the bargaining was allegedly influenced by ex parte contacts between Peabody and President Reagan’s administration.

The Navajo sought $600 million in damages. The Court docket, by way of Justice Scalia, rejected the declare. The Court docket declared that the final belief obligation, which began in Cherokee Nation and had been federal coverage ever since, was not adequate within the summary to create legally cognizable claims beneath the Indian Tucker Act.

Reasonably, the federal government’s obligations to pay damages could be outlined by the express textual content of statutes—miasmas primarily based on historical past or the like would not reduce the mustard. The Court docket would “practice on particular rights-creating or duty-imposing statutory or regulatory prescriptions.”

Beneath this strategy, the plaintiff should determine language that “bears the hallmarks of a standard fiduciary relationship” to ensure that belief rules to result in damages. The Court docket reviewed numerous statutes that approved and controlled coal leasing by the Secretary on behalf of Indians and located them bereft of such hallmarks. The Navajo misplaced.

The upshot of this state of affairs is a sort of belief purgatory for Indians. Beneath New Deal-era statutes, particular person Indians don’t personal their land, somewhat it’s held on their behalf by america as trustee. This presents a tradeoff. Authorities oversight can shield Indians towards abuse, however it additionally raises prices and presents alternatives for mismanagement and graft.

Terry Anderson and others have demonstrated the financial inefficiency of this association. See, e.g., https://digitalcommons.regulation.lsu.edu/cgi/viewcontent.cgi?article=1048&context=jelr.

However, to make issues worse, the trusteeship is just not one thing that the federal government should take severely, since it’s typically unenforceable in court docket. In different phrases, the Supreme Court docket created the belief obligation however doesn’t give it tooth in a manner that will make its potential realizable.

Congress can, after all, present the tooth, and maybe as a matter of institutional competence that is the correct common strategy. It relies on assumptions about what’s politically potential and creates area through which the hole between promise and on-the-ground outcomes is large.

Within the absence of congressional consideration on Indian issues and consensus on the scope of the federal government’s duties, the opposite nook resolution—releasing the Indians from the burdens of the belief relationship—could be preferable to protecting them beneath it however not dwelling as much as it is potential.

Arizona v. Navajo Nation, the most recent case on this space, bolstered this current line of circumstances paring again the belief responsibility. It did so within the particular context of water disputes, that are central to many tribes. The end result retains tribes in belief purgatory, as the federal government is sure to them as ward to guardian, to make use of Chief Justice Marshall’s phrase, however cannot be held to account in court docket when it fails to satisfy this sacred responsibility.

In a companion piece, Harriet McConnell Retford delves into the main points of this case and what it says concerning the knowledge of the belief obligation.