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

I’m delighted to report that we’ll have two items on this June 2023 Supreme Court case today, both from people who know a great deal about Indian law; unfortunately, I know very little about the subject, but I know it’s important, and I’m glad to have a chance to pass along these items. First, from Prof. Todd Henderson (Chicago):

Although it did not garner as much attention as the decision in the Indian Child Welfare Act case, the Supreme Court’s recent decision in a water dispute in Arizona is potentially more significant. In Arizona v. Navajo Nation, the Court held that despite being a “trustee” for the Navajo Nation and despite having promised the Navajo water sufficient to make its lands productive, the United States does not have an obligation to help the Navajo obtain that water.

The decision is the latest in a series of rulings that effectively gut the affirmative duties necessary under the trust obligation, absent explicit congressional command. Like many aspects of Indian law, the modern Court has flipped the script.

The old rule was the Court would interpret legal texts in favor of tribal interests, absent explicit congressional instructions to abrogate those rights—generally, the tie went to the Indian. Today, the opposite is increasingly true, with the Court looking for specific intent from Congress to give, rather than looking for specific intent to take away. Changing the default rule here, as elsewhere in law, has enormous implications.

The scope of the federal government’s trust obligation is the subject of centuries-old dispute, starting with the fact that the Supreme Court just made it up out of whole cloth. It started with a murder.

In 1830, George Corn Tassel, a Cherokee, killed Sanders Talking Rock Ford, another Cherokee, within the boundaries of the Cherokee Nation, in what is now Georgia. Georgia prosecuted Corn Tassel, and a jury of twelve non-natives convicted him. Represented by former Attorney General of the United States, William Wirt, the Cherokee appealed to the Supreme Court, which issued a stay pending appeal.

On Christmas Eve, Georgia defied the Court and hanged Corn Tassel. In the face of Georgia’s defiance, the Supreme Court took up the question of whether it had original jurisdiction to hear a challenge by the Cherokee Nation against the enforcement of the laws of Georgia on Cherokee land.

Answering in the negative in Cherokee Nation v. Georgia, Chief Justice Marshall declared the Cherokee Nation not a foreign nation, which would thus bring disputes between it and a state within the Court’s original jurisdiction, but rather a “domestic dependent nation.” Going unnecessarily further, Marshall baldly declared Indian tribes to be “in a state of pupilage” and describing “their relation to the United States” as “a ward to his guardian.” This is the origin of the “trust” obligation, which is the animating force behind two centuries of Indian policy and is the touchstone of all actions by the federal government today.

The federal government has been a lousy trustee. The history is replete with abuses by Indian agents charged with implementing federal policies to fulfill its trust responsibility, which led to starvation, murder, war, and expropriation of land and other resources.

The Bureau of Indian Affairs has also tried to stamp out Indian culture through the years, from the trivial, such as banning long hair and certain dances, to the monumental, such as the kidnapping of Indian children to have them (re)educated at boarding schools.

Lest one think this is all in the past, consider the litigation about the government’s management of accounts for individual Indians, whose property was leased out by the federal government. Under the trust obligation, Indians are not generally permitted to sell, rent, or lease their property without the permission of the federal government. Accordingly, the Bureau of Indian Affairs, as trustee, will enter into contracts with companies wishing to exploit the resources of Indian lands, such as timber or oil interests, holding any lease payments in individual accounts.

This was the trustee’s promise. For decades, bureaucrats held the monies in these accounts hostage, requiring Indians to beg for disbursements to buy basic items. Trustees embezzled the money or overcharged Indians, receiving kickbacks from in-cahoots retailers. Many millions went missing and Indians were infantilized.

Frustration eventually led to litigation—in 1996, Eloise Cobell, treasurer of the Blackfeet tribe, sued for an accounting of so-called Individual Indian Money Accounts. If you want to see government at its most inept, read Judge Royce Lamberth’s 1999 decision in Cobell v. Babbitt, in which he stated that “[i]t would be difficult to find a more historically mismanaged federal program than the Individual Indian Money (IIM) trust.”

The litigation dragged on for fourteen years. The government could not produce any coherent records for over 300,000 IIM accounts. Multiple Interior secretaries were held in contempt for failure to comply with court orders to produce records and to stop destroying evidence. Congress eventually settled the case for $3.4 billion, making the case the biggest ever won against the federal government.

The Supreme Court created this mess, but it has been reluctant to try to fix it. The tribes have come to the Court on occasion pressing claims that the federal government has been a lousy trustee.

For instance, in a 2009 case, United States v. Navajo Nation, the claim was that a lease to mine coal on Navajo lands entered into on their behalf by the Secretary of the Interior was corrupt. The initial royalty rate negotiated with the Peabody Coal Company 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, via Justice Scalia, rejected the claim. The Court declared that the general trust obligation, which started in Cherokee Nation and had been federal policy ever since, was not sufficient in the abstract to create legally cognizable claims under the Indian Tucker Act.

Rather, the government’s obligations to pay damages would be defined by the explicit text of statutes—miasmas based on history or the like wouldn’t cut the mustard. The Court would “train on specific rights-creating or duty-imposing statutory or regulatory prescriptions.”

Under this approach, the plaintiff must identify language that “bears the hallmarks of a conventional fiduciary relationship” in order for trust principles to lead to damages. The Court reviewed various statutes that authorized and regulated coal leasing by the Secretary on behalf of Indians and found them bereft of such hallmarks. The Navajo lost.

The upshot of this state of affairs is a kind of trust purgatory for Indians. Under New Deal-era statutes, individual Indians do not own their land, rather it is held on their behalf by the United States as trustee. This presents a tradeoff. Government oversight can protect Indians against abuse, but it also raises costs and presents opportunities for mismanagement and graft.

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

But, to make matters worse, the trusteeship is not something that the government must take seriously, since it is generally unenforceable in court. In other words, the Supreme Court created the trust obligation but does not give it teeth in a way that would make its potential realizable.

Congress can, of course, provide the teeth, and perhaps as a matter of institutional competence this is the right general approach. It depends on assumptions about what is politically possible and creates space in which the gap between promise and on-the-ground results is wide.

In the absence of congressional attention on Indian matters and consensus on the scope of the government’s duties, the other corner solution—freeing the Indians from the burdens of the trust relationship—might be preferable to keeping them under it but not living up to it’s potential.

Arizona v. Navajo Nation, the latest case in this area, reinforced this recent line of cases paring back the trust duty. It did so in the specific context of water disputes, which are central to many tribes. The result, keeps tribes in trust purgatory, as the government is bound to them as ward to guardian, to use Chief Justice Marshall’s phrase, but can’t be held to account in court when it fails to fulfill this sacred duty.

In a companion piece, Harriet McConnell Retford delves into the details of this case and what it says about the wisdom of the trust obligation.

The post Prof. Todd Henderson (Chicago) on Arizona v. Navajo Nation appeared first on Reason.com.