Fair And Honorable Dealings

Gila River Relocation Center, Rivers, Arizona. Mrs. Eleanor Roosevelt, accompanied by Dillon Myer, 04/23/1943 . Courtesy of athe National Archives.

NRS | Native Americans | Current Work of NRS Involving Indian Law Litigation

The 1970's

In 1972, the Court of Claims decided an ICCA case involving use of part of the Gila River Reservation for the relocation of Japanese American citizens during World War II pursuant to a lease approved by the Secretary of the Interior. On certain detention camp sites on the Reservation, the government lawfully destroyed the improvements after the sites were no longer needed, but had not restored these sites to their original condition, although the lease required it to do so. Plaintiff argued that the cost of restoration should be the measure of damages, but the Court rejected that position and held that the proper measure of damages was the diminution in the fair market value of the land at issue. Gila River Pima-Maricopa Indian Community v. United States, 199 Ct. Cl. 586, 596, 467 F.2d 1351, 1357 (1972).

The next year brought an important development with respect to the scope of permissible aboriginal title-related claims. United States v. Fort Sill Apache Tribe of the State of Oklahoma, 202 Ct. Cl. 134, 137-40, 480 F. 2d 819, 821-23(1973). The Court rejected the government's argument (based on the prohibition on splitting a cause of action) that a tribe could not make a claim for damages for the extinguishment of aboriginal title to a defined area, and a claim for trespass for removal of minerals from the very same lands by third parties, prior to the date aboriginal title was found by the Commission to have been extinguished.

But, in another 1973 case, the Court refused to extend the "fair and honorable dealings" clause to a claim that the government's imprisonment of all the members of the Chiricahua Apache Tribe destroyed the "tribe's traditional power and structure" with the result the Tribe could not hold land, govern its members or gather resources necessary to communal living, on the grounds the United States had never undertaken the obligation to protect the Tribe's power and structure. Fort Sill Apache Tribe of the State of Oklahoma v. United States, 201 Ct. Cl. 630, 640-44, 477 F. 2d 1360, 1365-68(1973).

The 1980's

In Gila River Pima-Maricopa Indian Community v. United States, 231 Ct. Cl. 193, 208-214, 684 F. 2d 852, 862-65 (1982), a "fair and honorable dealings" case, plaintiff claimed it had lost considerable Gila River water beginning in 1868 because of upstream diversions by non-Indians. Although the Court found that the government had a duty to take legal action to stop the diversions or provide the Tribe with an alternate supply of water, the Court found that plaintiff was only entitled to be restored to its pre-diversion standard — that is, entitlement to enough water to irrigate the 7,000 to 8,000 acres it had historically irrigated prior to these diversions. The Court rejected the argument that damages should be measured by the amount of water necessary to irrigate all the "practicably irrigable acres" on the Gila River Reservation. This conclusion was based primarily upon the fact that the government had no legal obligation to construct an irrigation system sufficient to irrigate all the practicably irrigable acres.

The 1990's

In 1991, the Tenth Circuit rejected the Cherokee Nation's "fair and honorable dealings" claim concerning the McClellan-Kerr Project. The Project constructed a navigable channel in the Arkansas Riverbed which plaintiff alleged damaged the Tribe's mineral interests in the part of the Arkansas Riverbed it owned. Cherokee Nation of Oklahoma v. United States, 948 F.2d 635 (10th Cir. 1991). The Court found that the Cherokee Nation had not proven the existence of the required "special relationship" between it and the United States and had not shown that, in the various Cherokee treaties, the United States had agreed to forego the exercise of its navigational servitude or to restrict its use.

The next year, the Federal Circuit issued an opinion dealing with the relationship between a navigational servitude and the "fair and honorable dealings" claim advanced by the Confederated Tribes of the Colville Reservation. Confederated Tribes of the Colville Reservation v. United States, 964 F.2d 1102 (Fed. Cir. 1992). Plaintiffs sought to recover damages for the water power values of tribal lands taken by the government for the construction of the Grand Coulee Dam for which no compensation had been paid to the Tribes. The government argued that the navigational servitude was a bar to this "fair and honorable dealings" claim, relying on the Supreme Court's 1987 Cherokee decision.

The Federal Circuit held that the navigational servitude was not necessarily a bar to this claim because a purely legal analysis was not adequate to dispose of a "moral" claim. The Court ruled that even though the government acts "within the scope of its constitutional or legal authority" it can still be held liable on a "fair and honorable dealings" claim if "its conduct is less than fair or honorable to Indian tribes.” 964 F.2d at 1113. The Court left the door open to pursuit of the Tribes' claim and remanded the case to the Claims Court to make additional findings on whether there was a "special relationship" between the Tribes and the government. Subsequently, there was a legislative settlement of this case under which the Tribes were paid $53 million for their ICCA claims, and Bonneville Power agreed to pay the Tribes a percentage of the power revenues from the Grand Coulee Dam annually over a 75-year period.


Updated May 12, 2015

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