The outcome in Navajo Nation was expected and a bit old news by now. Maybe it’s time for a retrospective on tribal suits against the United States, and their possible impact on federal Indian law, especially the trust relationship. Is it possible that the upswing of tribal money claims against the United States have somehow indirectly undermined some of the key foundations of federal Indian law? It may be.
We know that from 1959 to 1987 or so, tribal interests won about 59 percent of their cases in the Supreme Court. That trend has reversed dramatically since then, dropping to about 25 percent since 1987. Some of the interesting hallmarks of those successful cases in the 1960s and 1970s was the successful assertion of a federal government interest.
Consider Menominee Tribe v. United States. There, the U.S. had lost a case for money damages in the lower court brought by the tribe, damages caused by the Wisconsin Supreme Court’s holding that the U.S. had abrogated Menominee treaty rights. And so the U.S. argued for the Supreme Court to reaffirm tribal treaty rights in the Supreme Court. The U.S. had similar concerns about federal liability to Indian tribes for money damages in the first two Oneida land claims cases (1974 and 1985), and perhaps in other treaty rights cases (Fishing Vessel). In short, so long as the United States was potentially liable for injuries to Indian tribes, the government eoften would litigate on the side of the tribes as an indirect means of protecting the federal treasury.
At the same time, Indian tribes continued suing the United States in federal court, forcing the government to the defend. And the United States won some and lost some (Mitchell I and II, White Mountain Apache, Navajo I, and now Navajo II, are the key cases). But each time the federal government successfully defended against a tribal money claim, the precedents slowly moved toward limiting federal liability (and one could argue, even when the tribes won). And so, over time as the tribes litigated treaty rights and land claims, etc., the United States became less assertive of a federal money interest in the outcome. I think perhaps it means something that the United States has Mitchell I and the Navajo Nation I precedents in its back pocket when it participates in treaty cases on behalf of the N.Y. Haudenosaunee or the Michigan Anishinaabek — and the courts know it, too — the U.S. is less likely to be monetarily liable if the tribes go down in flames.
Another case in point — the U.S. testified again and again in the 1960s and 1970s before Congress to extend the statute of limitations on certain tribal land claims, arguing that the U.S. might be liable if the land claims expired against the tribes. Eventually, Congress extended the land claims indefinitely in 1982. If the same issue were on the table now, I doubt the U.S. agencies would be making the same arguments to Congress. I could be wrong.
This idea doesn’t explain all the cases, and maybe it doesn’t explain any one single case. But I think it may be part of the reason for the larger trend in the Supreme Court. It’s worthwhile to go back and see which cases the United States litigated on behalf of tribes in the 1960s and 1970s, and compare how they litigated those cases then with how they litigate now. Back then, I bet that the U.S. may have picked up a vote or two from the Justices because of the concern that the U.S. might become monetarily liable for something. Now, in cases like Wagnon and Plains Commerce Bank, the U.S. still argues in favor of tribal interests, but only argues that it has some limited financial interest in tribal reservation lending, or roads money, or tribal court development. There isn’t the same oooomf there.
This is not to say, in anyway, that tribes should stop suing the government. But maybe the tribes should reconsider some of their litigation strategies, and find a way to link tribal interests with federal liability.
Turtle Talk 
Just curious… With 20/20 hindsight, how would you have approached the litigation strategy in the Navajo Nation I or II case to produce a different outcome?
I wouldn’t have changed anything. I guess I’m referring more to cases where the tribe and the feds have similar interests. I suspect it used to be the feds were more worried about being liable for something. Now that’s not so much the case. I think the rest of the cases would come out better if the feds have more serious concerns about losing. Just speculatin’ on a proposition….
I can’t argue with that. Which is one of my real frustrations with these cases. The supremes have set the bar so high on the first hurdle that very few cases will be found to be actionable, no matter how egregious. At the same time, by setting a high bar, there is an incentive for rulemakers to specifically craft regulations to avoid liability. This seems, to me, to work exactly contrary to the intent of the Indian Tucker Act. It serves to provide significant cover for government breaches of their common law trust responsibilities. It also serves to, effectively, significantly reduce the trust responsibility itself in so far as you can say there isn’t really a duty if there is no accountability for a breach of that duty- just like there is no right if you can’t exercise it. And finally, as you point out, it really restricts the likelihood that the government will look out for/pursue tribal interests because they know the probability of liability for failing to do so is very low. So, absent amending the Indian Tucker Act to explicitly cover breaches of the common law Indian trust duty, maybe focusing on finding other non-liability focused interests of the federal government is the way to go.
The existence of possible repariation claims does seem to weigh over the current justices and their interpretation of what a ‘trust relationship’ means today.
You’re correct in your position that the relationship between the US federal government and the First Nations needs to change. For a nation the size of Navajo to allow itself to be held to the same class of legal rulings that govern tribes and bands does not respect the differences among 562 nations and the federal government.
The answer to this court failure will not be found via litigious strategizing but in political and business savvy solutions. The leases for Western Peabody Coal, the company at the crux of the issue, expires in a couple of years. Navajo Nation needs to flex some muscle and cut off the coal supply.
I agree with Ivan the Navajos need to recover their losses if Peabody comes back to the table for another lease or nip it in the bud and look for someone else this is a hard learning lesson and it shows that the Highest court is looking at every loose ends it can find and tribes who take a trip to the higher ground need to stratigize before entering the squared arena.