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Excerpts from United States v. White Mountain Apache Tribe

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Justice Souter delivered the opinion of the Court:

The question in this case arises under the Indian Tucker Act: does the Court of Federal Claims have jurisdiction over the White Mountain Apache Tribe's suit against the United States for breach of fiduciary duty to manage land and improvements held in trust for the Tribe but occupied by the Government. We hold that it does.

The former military post of Fort Apache dates back to 1870 when the United States established the fort within territory that became the Tribe's reservation in 1877. In 1922, Congress transferred control of the fort to the Secretary of the Interior (Secretary) and, in 1923, set aside about 400 acres, out of some 7,000, for use as the Theodore Roosevelt Indian School. Congress attended to the fort again in 1960, when it provided by statute that "former Fort Apache Military Reservation" would be "held by the United States in trust for the White Mountain Apache Tribe, subject to the right of the Secretary of the Interior to use any part of the land and improvements for administrative or school purposes for as long as they are needed for the purpose." The Secretary exercised that right, and although the record does not catalog the uses made by the Department of the Interior, they extended to about 30 of the post's buildings and appurtenances, a few of which had been built when the Government first occupied the land. Although the National Park Service listed the fort as a national historical site in 1976, the recognition was no augury of fortune, for just over 20 years later the World Monuments Watch placed the fort on its 1998 List of 100 Most Endangered Monuments.

In 1993, the Tribe commissioned an engineering assessment of the property, resulting in a finding that as of 1998 it would cost about $14 million to rehabilitate the property occupied by the Government in accordance with standards for historic preservation. This is the amount the Tribe sought in 1999, when it sued the United States in the Court of Federal Claims, citing the terms of the 1960 Act, among others, and alleging breach of fiduciary duty to "maintain, protect, repair and preserve" the trust property.

The United States moved to dismiss for failure to state a claim upon which relief might be granted and for lack of subject matter jurisdiction. While the Government acknowledged that the Indian Tucker Act, invested the Court of Federal Claims with jurisdiction to render judgments in certain claims by Indian tribes against the United States, including claims based on an Act of Congress, it stressed that the waiver operated only when underlying substantive law could fairly be interpreted as giving rise to a particular duty, breach of which should be compensable in money damages. The Government contended that jurisdiction was lacking here because no statute or regulation cited by the Tribe could fairly be read as imposing a legal obligation on the Government to maintain or restore the trust property, let alone authorizing compensation for breach.

The Court of Federal Claims agreed with the United States and dismissed the complaint for lack of jurisdiction, relying primarily on the two seminal cases of tribal trust claims for damages, United States v. Mitchell, (Mitchell I), and United States v. Mitchell, (Mitchell II). Mitchell I held that the Indian General Allotment Act (Allotment Act), as amended, providing that "the United States does and will hold the land thus allotted ? in trust for the sole use and benefit of the Indian," established nothing more than a "bare trust" for the benefit of tribal members. The general trust provision established no duty of the United States to manage timber resources, tribal members, rather, being "responsible for using the land," "occupy[ing] the land," and "manag[ing] the land." The opposite result obtained in Mitchell II, however, based on timber management statutes and regulations, under which the United States assumed "elaborate control" over the tribal forests. Mitchell II identified a specific trust relationship enforceable by award of damages for breach.

Here, the Court of Federal Claims compared the 1960 Act to the Allotment Act in Mitchell I, as creating nothing more than a "bare trust." It saw in the 1960 Act no mandate that the United States manage the site on behalf of the Tribe, and thus no predicate in the statutes and regulations identified by the Tribe for finding a fiduciary obligation enforceable by monetary relief.

The Court of Appeals for the Federal Circuit reversed and remanded, on the understanding that the United States' use of property under the proviso of the 1960 Act triggered the duty of a common-law trustee to act reasonably to preserve any property the Secretary had chosen to utilize, an obligation fairly interpreted as supporting a claim for money damages. The Court of Appeals held that the provision for the Government's exclusive control over the building actually occupied raised the trust to the level of Mitchell II, in which the trust relationship together with Government's control over the property triggered a specific responsibility.

Chief Judge Mayer dissented on the understanding that the 1960 Act "carve[d] out" from the trust the portions of the property that the Government is entitled to use for its own benefit, with the consequence that the Tribe held only a contingent future interest in the property, insufficient to support even a common law action for permissive waste.We granted certiorari to decide whether the 1960 Act gives rise to jurisdiction over suits for money damages against the United States and now affirm.

Justice Ginsburg, with whom Justice Breyer joins, concurring.

I join the Court's opinion, satisfied that it is not inconsistent with the opinion I wrote for the Court in United States v. Navajo Nation.

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Both Navajo and the instant case are guided by United States v. Mitchell (Mitchell I), and United States v. Mitchell (Mitchell II). While Navajo is properly aligned with Mitchell I, this case is properly ranked with Mitchell II. Mitchell I and Mitchell II, as Navajo explains, instruct that "[t]o state a claim cognizable under the Indian Tucker Act ?, a Tribe must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties." If the Tribe satisfies that threshold, "the court must then determine whether the relevant source of substantive law 'can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].'" (quoting Mitchell II).

In this case, the threshold set by the Mitchell cases is met. The 1960 Act provides that Fort Apache shall be "held by the United States in trust for the White Mountain Apache Tribe" and, at the same time, authorizes the Government to use and occupy the fort. Thus, as the Court here observes, the Act expressly and without qualification employs a term of art ("trust") commonly understood to entail certain fiduciary obligations, and "invest[s] the United States with discretionary authority to make direct use of portions of the trust corpus," ("no provision of the IMLA or its regulations contains any trust language with respect to coal leasing"). Further, as the Court describes, the Tribe tenably maintains that the Government has "availed itself of its option" to "exercis[e] daily supervision ? [and] enjo[y] daily occupation" of the trust corpus, ante, at 8, but has done so in a manner irreconcilable with its caretaker obligations. The dispositive question, accordingly, is whether the 1960 measure, in placing property in trust and simultaneously providing for the Government-trustee's use and occupancy, is fairly interpreted to mandate compensation for the harm caused by maladministration of the property.

Navajo, in contrast, turns on the threshold question whether the Indian Mineral Leasing Act (IMLA) and its regulations impose any concrete substantive obligations, fiduciary or otherwise, on the Government. Navajo answers that question in the negative. The "controversy ? falls within Mitchell I's domain," Navajo concludes, for "the Tribe's claim for compensation ? does not derive from any liability-imposing provision of the IMLA or its implementing regulations." The coal-leasing provisions of the IMLA and its allied regulations, Navajo explains, lacked the characteristics that typify a genuine trust relationship: Those provisions assigned the Secretary of the Interior no managerial role over coal leasing; they did not even establish the "limited trust relationship" that existed under the law at issue in Mitchell I.

In the instant case, as the Court's opinion develops, the 1960 Act in fact created a trust not fairly characterized as "bare," given the trustee's authorized use and management. The plenary control the United States exercises under the Act as sole manager and trustee, I agree, places this case within Mitchell II's governance.* To the extent that the Government allowed trust property "to fall into ruin," ante, at 8, I further agree, a damages remedy is fairly inferable.


* Mitchell I does not tug against this placement. The General Allotment Act (GAA) at issue in Mitchell I (1980) narrowly circumscribed its use of the term "trust" by making "the Indian allottee, and not a representative of the United States ? responsible for using the land for agricultural or grazing purposes." The GAA thus removed one of the "hallmarks of a more conventional fiduciary relationship." The 1960 Act, in contrast, does not modify its mandate that the United States hold the property "in trust for the White Mountain Apache Tribe," except to confirm that the Government-trustee may occupy and use the property. Occupation of the trust corpus by the trustee is a common feature of trusteeship, and does not itself alter the fiduciary obligations that an expressly created trust ordinarily entails.

Justice Thomas, with whom The Chief Justice, Justice Scalia and Justice Kennedy join, dissenting.

The majority's conclusion that the Court of Federal Claims has jurisdiction over this matter finds support in neither the text of the 1960 Act, nor our case law. As the Court has repeatedly held, the test to determine if Congress has conferred a substantive right enforceable against the Government in a suit for money damages is whether an Act "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." United States v. Testan, (quoting Eastport S. S. Corp. v. United States) (1967) Instead of faithfully applying this test, however, the Court engages in a new inquiry, asking whether common-law trust principles permit a "fair inference" that money damages are available, that finds no support in existing law. But even under the majority's newly devised approach, there is no basis for finding that Congress intended to create anything other than a "bare trust," which we have found insufficient to confer jurisdiction on the Court of Federal Claims in United States v. Mitchell (1980) (Mitchell I). Because the 1960 Act "can[not] fairly be interpreted as mandating compensation by the Federal Government for damage sustained" by the White Mountain Apache Tribe (Tribe), Testan, supra, at 400, I respectfully dissent?

"[A] fiduciary relationship necessarily arises when the Government assumes such elaborate control over forests and properties belonging to the Indians?. '[W]here the Federal Government takes on or has control or supervision over tribal monies or properties? (unless Congress has provided otherwise) even though nothing is said expressly in the authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection.'"

However, this case does not involve the level of "elaborate control over" the Tribe's property that the Court found sufficient to create a compensable trust duty in Mitchell II. Mitchell II involved a "comprehensive" regulatory scheme that "addressed virtually every aspect of forest management," and under which the United States assumed "full responsibility to manage Indian resources and land for the benefit of the Indians." Here, by contrast, there are no management duties set forth in any "fundamental document," and thus the United States has the barest degree of control over the Tribe's property. And, unlike Mitchell II, the bare control that is exercised by the United States over the property does not inure to the benefit of the Indians. In my view, this is more than sufficient to distinguish this case from Mitchell II.

Moreover, even assuming that Mitchell II can be read to support the proposition that mere factual control over property is sufficient to create compensable trust duties (which it cannot), the Court has never provided any guidance on the nature and scope of such duties. And, in any event, the Court has never before held that "control" alone can give rise to, as the majority puts it, the specific duty to "preserve the property." Ante, at 8. Indeed, had Congress wished to create such a duty, it could have done so expressly in the 1960 Act. Its failure to follow that course strongly suggests that Congress did not intend to create a compensable trust relationship between the United States and the Tribe.

In addition, the Court's focus on control has now rendered the inquiry open-ended, with questions of jurisdiction determined by murky principles of the common law of trusts, 2 and a parcel-by-parcel determination whether "portions of the property were under United States control." Such an approach provides little certainty to guide Congress in fashioning legislation that insulates the United States from damages for breach of trust. Instead, to the ultimate detriment of the Tribe, Congress might refrain from creating trust relationships out of apprehension that the use of the word "trust" will subject the United States to liability for money damages.