Supreme Court Issues Opinion Affecting Indian Country

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Contact: Jared King

Navajo Nation Washington Office
202.682.7390
202.200.0625
jking@gmail.com
www.nnwo.org

For Immediate Release

Supreme Court Issues Opinions Affecting Indian Country

WASHINGTON—On Monday, June 11, the U.S. Supreme Court issued two opinions affecting Indian Country.

In Salazar v. Ramah Navajo Chapter, the Supreme Court considered whether the Secretary of the Interior had to pay to the full amount of ‘contract support costs’ owed under self-determination, or ‘638’, contracts.

Tribes and tribal entities having 638 contracts sued the federal government under the terms of the Indian Self-Determination and Education Assistance Act (ISDA), which allows for money damages for breach of contract, for underpayment of contract support costs between 1994 and 2001.

Holding that the “United States are as much bound by their contracts as are individuals”, and that government contractors “may trust that the Government will honor its contractual promises”, the Supreme Court held that the Secretary had to pay out the full amount of contract support costs owed.

The high court said that it is Congress’ responsibility to resolve the situation wherein it passed a law requiring the Secretary to accept all qualifying requests for 638 contracts, and then failed to appropriate enough funds to fully pay all tribal contractors.

Treating tribes having 638 contracts as government contractors, the Ramah decision is based in federal contract law. The litigating parties will now have to go back to court to determine the amount of money damages they are owed.

In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, the Supreme Court considered whether a private landowner had an enforceable interest (standing) to challenge the taking of land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band), and whether the sovereign immunity of the United States barred the suit.

Alleging a variety of harms, including aesthetic reasons, the landowner, Patchak, sued to stop the Secretary of the Interior from taking land into trust for the Band, arguing that the Secretary could not take the land into trust because the Band was not federally recognized in 1934 when the Indian Reorganization Act (IRA) was enacted.

The Supreme Court found that since Patchak wasn’t claiming ownership of the land, and alleged that the Secretary was acting improperly by attempting to take land into trust for the Band, he could challenge the land into trust process pursuant to 25 C.F.R. Part 151, and the United States was not immune from suit.

The specific land into trust issue originally raised by Patchak likely will not affect the Navajo Nation since it was federally recognized in 1934.

However, the Court’s ruling potentially opens the door to suits challenging land into trust actions that are less than six years old based on other legal theories, such as the National Environmental Policy Act or the Indian Gaming Regulatory Act. This could effectively add six years of uncertainty to any development projects involving the Secretary taking land into trust.

As justice Sonia Sotomayor points out in her dissenting opinion: “After today, any person may sue… to divest the Federal Government of title to and possession of land held in trust for Indian tribes… so long as the complaint does not assert a personal interest in the land”.

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