By Bill McAllister
Denver Post Washington Bureau
Tuesday, December 03, 2002 - WASHINGTON - With Interior Secretary Gale Norton looking on, the Bush administration urged the Supreme Court on Monday to draw a narrow definition of the government's trust responsibility to American Indians.
That responsibility, under which Norton faces a contempt citation from a federal judge, has been one of the cornerstones of Indian law since the nation was founded. But Justice Department lawyers argued in cases involving the Navajo Nation and the White Mountain Apache Tribe of Arizona that lower courts have interpreted the government's duty too broadly.
The high court's decision will have a major impact on more than 500 federally recognized tribes nationwide and on the governments and businesses that deal with them. It may also affect a separate, 6-year-old lawsuit Norton faces over her responsibilities for managing individual trust accounts for more than 300,000 Indians. Norton has been held in contempt of court in that dispute.
At stake in both cases argued Monday are millions of dollars that the tribes say the federal government owes them over handling of a multimillion-dollar lease on the Navajo reservation in New Mexico and the preservation of Fort Apache in Arizona, a historic fort where government soldiers once patrolled for warring Indians.
In the Navajo dispute, the Indians argue that the government had a trust responsibility to ensure the Indians were properly compensated for their coal.
Instead, Paul E. Frye, a lawyer for the Indians, said former Interior Secretary Donald Hodel effectively undercut the Indians in their renegotiation of the coal lease held by Peabody Coal Co. on their reservation.
Frye accused Hodel, who now lives in Silverthorne, Colo., of heeding the advice of an old friend, Stanley Hulett, who lobbied on behalf of Peabody to kill a proposed increase in coal royalties.
"What we're complaining about is the secretary colluding with Peabody Coal to swindle the Navajo Nation," Frye told the court.
Hulett was paid $13,000 for the lobbying, which wasn't enough considering the $600 million in damages the Indians are seeking, Frye said. "Frankly, he was underpaid."
Hodel knew the outcome of the royalty negotiations "was wrong because he skewed it," Frye said.
Edwin S. Kneedler, deputy solicitor general, countered that Hodel acted within the law, which gave him discretion to review the coal agreement.
The Fort Apache case involved a much smaller claim, about $8 million for the Interior Department's alleged failure to maintain a historic post within the White Mountain Apache Reservation.
Robert C. Brauchli of Tucson complained that the Interior Department had failed to maintain the fort for the tribe as required under its trust responsibilities.
Several justices appeared puzzled by the government's arguments and they repeatedly challenged Gregory G. Garre, an assistant to the solicitor general, over the nature of the government's trust responsibility. Garre contended that the tribe needed to cite specific laws outlining the government's responsibilities and claimed the government had no special obligation to care for the fort, now a tourist attraction.
The Indians filed but lost both initial lawsuits, which were reversed on appeal. The court is expected to rule by spring on the cases. Chief Justice William Rehnquist, who is recovering from knee surgery, did not attend the arguments, but Justice John Paul Stevens said Rehnquist will participate in the deliberations.