Friday, November 29, 2002

Supreme Court

Arguments start back up the week of December 2 – 12 cases to be argued over the next two weeks – and there are many that will be (for me at least) hard to predict.

December 2 brings two "Indian law" cases. If you want to skip over the nuts and bolts of the legal stuff, and go straight to my little rant, skip to the last paragraph.

Both of these cases present variants on the question whether a tribe can sue the United States for monetary relief, when the U.S. was allegedly supposed to be acting as a trustee for members of the tribe but ended up (imagine that!) screwing them. In both cases, the U.S. Court of Appeals for the Federal Circuit – a specialized appellate court that hears an odd variety of cases including certain claims against the government – said that the tribe could sue the U.S. for monetary relief.

In the first case, U.S. v. White Mtn. Apache Tribe, the U.S. was supposed (by statute) to be holding some real property (Fort Apache) in trust for the Tribe. But the U.S. let the buildings on that property fall into disrepair; some were condemned and demolished. The Tribe says it would cost $14 million to repair the place, and sued for that money. This case requires the Court to look back to its own opinions in U.S. v. Mitchell I and II. Under those opinions, the fact that the government holds property in trust for Indians does not mean, ipso facto, that the government is required to manage the property, or that the government can be held monetarily liable for failure to manage the property properly. Beyond the establishment of the trust, there has to be something else in order to allow a monetary claim like the ones brought in these cases. What that 'something else" is, is the millions-of-dollars question.

My guess is that the Court will hold that the "something else" that is needed to justify a monetary award in a case like this is not just the governmental right to control the use of the property (which is essentially what the Federal Circuit held), but, beyond that, a clear statutory directive that the government must manage the property for the monetary benefit of the beneficiary Indians. That sort of clear statement is lacking in White Mtn. Apache and so I say "REVERSE."

In U.S. v. Navajo Nation, what's at stake is bigger: hundreds of millions of dollars in royalty payments for mineral extraction from Indian lands. The allegation is that the government was required to act in a fiduciary capacity towards the Indians in setting the royalty rate, but that the government was in fact acting more in the interest of Peabody Coal and royally screwed the Indians whom it was supposed to be protecting. Here again, what we're looking at for guidance is Mitchell I and II. The plaintiffs' arguments have a great appeal: if the government is supposed to be acting in the best interests of the Tribe in this context, and it instead intentionally screwed them, that's an outrage. But I think it's more likely that this Court will take hard-nosed approach: "Don't give us that touchy-feely generalized abstract stuff about 'supposed to act in the best interests of the Tribe'; If you want $600 million from the U.S., you'd better show us a statute that clearly imposes on the U.S. the duty to do what you say it should have done. And we don't see any such clearly-applicable clearly-worded statute, so you're out of luck." So I'm saying "REVERSE" here too.

My little rant is not just that – if things go the way I expect – this will once again be a triumph of the more powerful over the less powerful. It is that, even while the Court portrays itself as doing the least "activist" part of its job – "we're just meekly doing our best to interpret the statutes that Congress drafted!" – there is much room for the Court to "actively" create the governing law, by (for example) saying "it's not clear that Congress meant 'x', and we would need a very clear statement to that effect before we would interpret the statute as meaning 'x'." As you can see above, I expect that sort of argument to carry the day in these cases. And so the lesson today is, don't think of such rules as being neutral, mild-mannered, self-effacing ones on the judiciary's part. Those rules can be – not that they always are, but that they can be – the vehicle by which judges make sure that statute-based cases come out the way they think the law "ought" to be.

posted by sam 7:53 AM 0 comments

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