The Sport of Courts

For broadcast on WAMC Northeast Report on April 21, 2009

This week I’d like to make it clear that the Court is consistent in its treatment of those who have been abused by government misconduct. They get the back of this Court’s hand.

In 1964 the Navajo Indian tribe leased coal mining rights to a coal company, now Peabody Coal. The lease provided that the Secretary of the Interior would adjust the royalty rate at stated intervals. When the time approached and the Navajo Nation asked the Secretary to raise the rate, the Department had several economic studies done of the value of the high quality coal on the Navajo land, and each of those independent studies recommended that the rate should be set at approximately 20% of profits. No federal study ever recommended less.

The result was a new lease in which the Tribe lost nearly 40% of the value of the coal.

There is no doubt that the Secretary acted improperly. The secretary had been given the responsibility of protecting the tribes. Instead he met privately with one side, what lawyers call ex parte, withheld a decision based on independent studies, and discouraged the Tribe about the prospect of an appropriate decision from his office. That cost the Tribe considerably.

The legal argument has not been about whether the Secretary acted properly or in good faith. The legal argument has been about whether the Secretary had an obligation to act in good faith toward the Tribe, whether its power over the lease involved a position of trust toward the Tribe.

The Navajo’s effort to recoup what they lost through the misbehavior of the Secretary has been to our Supreme Court twice. The first time, in 2003, the Court decided that the Secretary had no obligation under a series of statutes which had been thought by most of us to put the Secretary under an obligation toward the Tribes, what lawyers call a fiduciary obligation.

The Tribe went back to the appellate court which decided that other statutes than the ones considered by the Supreme Court placed the Secretary under a duty toward the Tribe. The Court reinstated its decision in favor of the Tribe. Once again the case made its way to the U.S. Supreme Court. And once again this Court said the Secretary was under no statutory duty to the Tribe.

To paraphrase Thomas Hardy, thus did the U.S. Supreme Court finish its sport with the Navajo.

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