Tribal Self-determination in Natural Resources: Management, Control, and Trust Responsibilities or the Lack Thereof in Navajo Nation v. United States, 129 S. Ct. 1547 (2009)

• Publication year: 2021

89 Nebraska L. Rev.538. Tribal Self-Determination in Natural Resources: Management, Control, and Trust Responsibilities or the Lack Thereof in Navajo Nation v. United States, 129 S. Ct. 1547 (2009)

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Note(fn*)

Tribal Self-Determination in Natural Resources: Management, Control, and Trust Responsibilities or the Lack Thereof in Navajo Nation v. United States, 129 S. Ct. 1547 (2009)

TABLE OF CONTENTS

I. Introduction.......................................... 539

II. Background........................................... 541
A.The Indian Tucker Act ............................ 541
B.The "Path-marking Precedents".................... 542
1.United States v. Mitchell (Mitchell D, 445 U.S. 535 (1980)..................................... 542
2. United States v. Mitchell (Mitchell II), 463 U.S. 206 (1983).....................................543
a. Majority Opinion...........................543
b. Dissenting Opinion.........................544
C. United States v. Navajo Nation (Navajo I), 537 U.S. 488 (2003) ........................................ 545
1.Facts and Procedural History.................. 545
2.Majority Opinion .............................. 548
3.Dissenting Opinion ............................ 549
D.United States v. Navajo Nation (Navajo II), 129 S. Ct. 1547 (2009).................................... 550
1.Procedural History on Remand ................. 550
2.Majority and Concurring Opinions ............. 552

III. Analysis .............................................. 553
A.Legal Reasoning................................... 553
B.Toward the Future................................ 555

IV. Conclusion............................................ 558

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I. INTRODUCTION

Determining the contours of the United States' trust responsibilities to the various Indian tribes has been a path marked with inconsistencies, inequities, and enough complex legal reasoning to make one's head spin. While it might have been hoped that United States v. Navajo Nation (Navajo II)(fn1) would clear up some of the inconsistencies, it should be clear by this time that no such help is forthcoming. Rather this case continues in the tradition of a "malleability that has allowed the doctrine [of federal trust responsibility] to be repeatedly transformed over the years, leaving a conflicted legacy for tribes and their members."(fn2) On this analysis, the future decisions of the Supreme Court rest less on precedent and more on the individual actors involved and the social and historical contexts in which they act.(fn3) This Note will attempt to add to the already large body of scholarly work(fn4) examining the controversy at various stages of decision and argue that the case represents a continuation of principles iterated in the dissenting opinion of United States v. Mitchell (Mitchell II).(fn5)

In 1993, the Navajo Nation filed a lawsuitNavajo Nation v. United States(fn6) alleging breach of fiduciary duties for actions taken by the Secretary of the Interior during the approval process for coal lease amendment negotiations between the tribe and Peabody Holding Company. A protracted legal battle began, ultimately requiring two

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Supreme Court opinions to finally resolve that the tribe's claims for monetary relief lacked jurisdiction under statutory and case law provided by the Indian Tucker Act,(fn7) United States v. Navajo Nation (Navajo I), United States v. Mitchell (Mitchell I),(fn8) and Mitchell II.(fn9) In one sense the Supreme Court's original decision in 2003 in Navajo I(fn10) "left no room" for a decision in favor of the tribe on remand.(fn11) However, in another sense the Court's decision failed to adequately address the importance (or even possibility) of government control over the tribe's natural resources due to the Secretary of the Interior's approval role in the lease amendment process unless the majority's contention that control over tribal coal does not matter is taken seriously.(fn12) If this is indeed the case, and control of tribal resources does not matter in claims alleging government mismanagement of tribal resources, then claims in the Mitchell II vein will be limited to those claims addressing the government's management of tribal resources. These claims will be further restricted by the current trends in legislative and bureaucratic enactments purporting to enhance tribal self-determination while still leaving the government in a powerful approval role with respect to those resources.(fn13)

This Note examines the Supreme Court's decision in Navajo II and evaluates the Court's opinion in light of the previous "path-marking precedents"(fn14) in Mitchell I and II. Part II provides background on the Indian Tucker Act, Mitchell I and II, and the entirety of the procedural and decisional history of Navajo II. Part III argues that the Court's opinion in Navajo II represents at least a partial rejection of the reasoning of Mitchell II and shares some commonalities with the dissenting opinion in that case. Part III also addresses the possibility of government control of tribal resources through the Secretary of Interior's approval role in lease amendments of this type, and it also discusses whether Mitchell II represents for this Court a decision that only extensive management of tribal resources can support Indian Tucker Act jurisdiction. Part Iv concludes by arguing that once the case is placed in context, the decision represents a continuation of the judiciary's conflicting holdings regarding tribal resources. However,

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these holdings amount to little more than political choices clothed in legal reasoning, and due to the large amount of money at stake, both for the government and for energy consumers in the region, the Court chose to turn a blind eye to the actual control inherent in an "approval only" role assumed by the government.(fn15)

II. BACKGROUND

A. The Indian Tucker Act

Although Navajo II examines a complicated array of statutes and regulations, at its heart the case is strictly about jurisdiction. Since the Navajo were suing the United States, the first order of business is the same as in any other suit against the federal government-finding out whether the government has waived its sovereign immunity. In the case of most claimants, waiver of sovereign immunity is accomplished through the Tucker Act(fn16) and allows the United States to be sued in the United States Court of Federal Claims for any claim "founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort."(fn17) The purpose of the Tucker Act was to relieve the growing burden placed on Congress to provide individualized relief to persons harmed by government action through private bills by granting jurisdiction to the Court of Federal Claims.(fn18)

The Indian Tucker Act,(fn19) as it is colloquially known, serves to accomplish the same ends as the Tucker Act with respect to suits by Indian tribes. The Tucker Act is "only a jurisdictional statute; it does not create any substantive right enforceable against the United States

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for money damages."(fn20) Individual claimants under the Tucker Act must therefore find a substantive right in some other source of law.(fn21) Since the Indian Tucker Act provides "jurisdiction [over] any claim ... which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group,"(fn22) the analysis is the same for the Tucker Act and the Indian Tucker Act.

B. The "Path-marking Precedents"

1. United States v. Mitchell (Mitchell I), 445 U.S. 535 (1980)

United States v. Mitchell (Mitchell I)(fn23) concerned the liability of the United States for alleged mismanagement of timber on allotted and tribal land, with an attempt to tie a money-mandating duty on the government to the General Allotment Act of 1887.(fn24) However, after a lengthy discussion of the purpose and intent of the General Allotment Act, the Court determined that the Act was not meant to impose money-mandating trust duties on the government, even though the Act expressly provided that the allotments were to be held "for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made."(fn25)

In the main, the Court determined that money damages were not appropriate in light of the legislative history and purpose of the express trust language in the General Allotment Act. Since most of the discussion relating to the trust language in the General Allotment Act focused on the need to provide a safeguard against state taxation or premature sale of allotted lands,(fn26) the Court found that the trust language only created a limited trust relationship with respect to the allottees and the tribe and did not impose any obligations with respect to the management of timber resources.(fn27) Additionally, the Court found support for this view in the subsequent acts of Congress "authorizing the harvesting and sale of timber on specific reservations."(fn28) In the last footnote of the majority opinion, however, the Court referred to the unresolved issue of whether there was merit to the claim

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that a network of other statutes mandated money damages.(fn29) The Court explicitly mentioned that...