Tribal Natural Resources

*/ Rock  slide on the Navajo Loop Trail. Courtesy of  USGS.

In one ICCA case, the Navajo Tribe argued that when Bureau of Indian Affairs (BIA) leased some of the tribal oil and gas lands it assumed a fiduciary duty to lease out all the tribal oil and gas lands so as to maximize income therefrom. Navajo Tribe of Indians v. United States, 222 Ct. Cl. 158, 610 F. 2d 766, 768 (1979). The Court ruled that there was no general, unanchored fiduciary duty to maximize income from tribal oil and gas lands. Id.

The Navajo Mineral Resources Decision

In December 1985, the Claims Court issued a significant ICCA decision concerning the Government's alleged mismanagement of certain mineral resources on the Navajo Reservation. Navajo Tribe of Indians v. United States, 9 Cl. Ct. 227 (1985), appeal dism'd (Fed. Cir. 1987). Although the Tribe claimed about $88 million in damages, they were awarded only $6,000. The most interesting part of the opinion concerned the claim that the government had committed a breach of '"fair and honorable dealings" by not paying a prospecting fee for the exploration of about 3 million acres of the Reservation to locate carnotite deposits (which contain uranium) by UMDC, the government corporation charged with finding sources of uranium for the Manhattan Project. Judge Lydon found that no breach of Clause (5) had occurred because:

  • the UMDC had only mapped carnotite deposits and taken rock samples and did not mine any carnotite;
  • the Tribe had asked BIA in 1938 to do a survey of the Reservation's mineral resources; and
  • the Tribe had passed a resolution supporting the national war effort.

In addition, the judge relied upon the opinion in Nevada v. United States, 463 U.S. 110, 127 (1983). In Nevada, the Supreme Court held that the government's simultaneous representation of an Indian tribe and non-Indians whose agricultural lands were served by irrigation projects constructed by the Bureau of Reclamation in a general stream adjudication did not give rise to a breach of trust. The Supreme Court had concluded that, when Congress imposes upon the government competing obligations to different groups, the "fastidious standards of a private trustee" do not apply to the government.

Another noteworthy part of the 1985 opinion rejected the award of pre-judgment interest upon any damages awarded on the Tribe's resource management claims. The Court reasoned that since damages represent amounts of additional revenue which should have been generated if the resources had been managed adequately, these additional revenues were never in existence and never deposited in an interest-bearing tribal trust account. Hence, there could be no grounds for paying interest thereon.

The Navajo Commercial Timber Decision

In Navajo Tribe of Indians v. United States, 9 Cl. Ct. 336 (1986), appeal dism'd (Fed Cir. 1987), which concerned the alleged mismanagement of tribal commercial timber on the Navajo Reservation, the Claims Court held that the standard of care owed by the government as trustee was what an ordinary prudent man operating under the same economic, social, and technological constraints as the BIA would do. 9 Cl. Ct. at 367.

As to the claim of a severe lack of regeneration of the Tribe's Ponderosa pine timber stands, the Court held that the BIA had not breached the "fair and honorable dealings" clause by allowing the members of the Tribe to graze their sheep in the tribal commercial forest where the best grazing area was found, even though BIA officials knew that the sheep would destroy the Ponderosa pine seedlings and adversely affect regeneration of the commercial timber. The BIA Superintendent of the Reservation from 1936 to 1942 testified at trial that his primary concern was protecting the livelihood of the individual Navajos and that any serious attempt by BIA to keep the sheep out of the commercial forest would have ignited an "open revolt almost" on the Reservation. (More than 90% of the Tribe relied upon sheep raising for their livelihood, which also implicated Navajo social and religious values). The Court held that, given the social and economic constraints under which BIA was operating during the 1936-1942 period, the BIA had met the ordinary prudent man standard.

The Court awarded the Tribe approximately $1.5 million of the $116 million in damages claimed. Both the timber and mineral resource claims, together with all of the remaining resource management claims, primarily the overgrazing/erosion mismanagement of 10 million acres of tribal rangelands, were settled in 1986 for $32.5 million.

The White Mountain Apache Overgrazing Decision

In 1987, the Claims Court issued another very significant ICCA opinion on resource mismanagement claims. White Mountain Apache Tribe of Arizona v. United States, 11 Cl. Ct. 614 (1987), aff'd per curiam, 5 F.3d 1506 (Fed. Cir. 1993), cert. denied, 530 U.S. 1020 (1994). One noteworthy portion of the opinion is the discussion of the "continuing wrongs" doctrine. Judge Nettesheim (now Judge Miller) held that the mere similarity of pre-August 13, 1946 wrongful governmental actions and post-August 13, 1946 wrongful actions did not give rise to a "continuing wrong." Rather, there must be a "nexus" between the post-1946 and pre-1946 actions. In short, she adopted a very narrow construction of the doctrine of "continuing wrongs.” 11 Cl. Ct. at 644-45.

The most significant aspect of the opinion was the adjudication of the Tribe's overgrazing/erosion claim because this was the first time that this particular type of claim had been adjudicated under the ICCA. 11 Cl. Ct. at 647-67. A large portion of the tribal rangelands had been permitted/leased to non-Indian stockmen beginning in 1902 at the government's instigation for the purpose of generating revenues for the Tribe. The Tribe alleged that severe erosion on these lands began around 1912 and lasted until 1935, and attributed this erosion to massive overgrazing by the non-Indian permittees' livestock. The overgrazing allegedly was the result of the failure of BIA employees to prevent the permittees from routinely grazing many more head of livestock than their permits authorized. The government's geomorphologist and climatologist testified that changes in climatic cycles constituted the cause of the erosion in question.

The Court acknowledged that the basic cause of the erosion was the change in climatic cycles, but found that removal of a high percentage of the vegetative cover by the overgrazing led to "accelerated" erosion. The Court stressed that, during most of the 1912-1935 period, managers of both non-Indian and Indian rangelands generally believed that overgrazing was the principal cause of erosion. Notwithstanding this widely accepted belief, the BIA officials had made no effort to prevent overgrazing. Accordingly, the Court found the government liable on this “fair and honorable dealings” claim. Finally, the Court ruled that the federal government had no fiduciary obligation to construct an irrigation system sufficient to irrigate all the potentially irrigable land on a reservation.

The Miccosukee Decision

In 1997, the District Court for the Southern District of Florida rejected the Miccosukee Tribe's claim that the Army Corps of Engineers and the National Park Service officials in charge of Everglades National Park, by refusing to take actions requested by the Tribe, had breached their trust duty to afford the tribal members residing along the northern edge of the Everglades National Park special flood protection. Miccosukee Tribe of Indians of Florida v. United States, 980 F. Supp. 448 (S.D. Fla. 1997), aff'd without opinion, 163 F.3d 1359 (11th Cir. 1998).1 The Court relied upon the Supreme Court's Nevada opinion. Because the Everglades Enabling Act provided for protection of the rights of the Seminoles (of which the Miccosukees were a part) consistent with carrying out the purposes for which the Park was created, the Court found that Congress had expressly imposed competing obligations on the government — to the Indians and to the general public — and therefore, the government had not committed a breach of trust. Thus, a second decision extended Nevada to government actions beyond the realm of conducting litigation on behalf of Indian tribes and non-Indians.


1The Tribe also raised constitutional arguments which were also rejected.

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Updated April 13, 2015

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