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Tuesday, November 19, 2002
No. 01-1067 United States v. White Mountain Apache Tribe

Monday, December 2, a mere four days after Thanksgiving, is the day for Indian cases at the Supreme Court. First up is U.S. v. White Mountain Apache Tribe. In this case, the government operated a school for Indians on the former military site, Fort Apache, on the Fort Apache Indian Reservation in Arizona. In 1960, Congress passed an act declaring that the site, and the improvements thereon, would be held in trust for the Tribe, subject to the government's right to operate a school there for as long as the government felt like operating a school there.

Some time later, after some of the buildings on the site fell into disrepair, the Tribe created a plan to repair and restore the site, with an estimated price tag of $14 million or so. The Tribe filed this suit, claiming that the government had violated its trust responsibility to maintain the buildings on the site while it was using them for school purposes. The Court of Federal Claims dismissed the case on the basis that the government's fiduciary responsibility did not give rise to a claim for money damages for breach of that responsibility. The Court of Appeals for the Federal Circuit reversed. In the opinion of the panel (with one dissent), whether the government's fiduciary duty extended to the buildings depended on the extent to which the government exclusively controlled the buildings in trust for the Tribe. The appellate court remanded to determine to what extent the government controlled the buildings in question.

The court went on to determine that, according to common law trust principles, the United States would have an affirmative duty to maintain the subject of the trust, and that allowing the buildings to fall into disrepair would violate that duty. This reasoning seems pretty sound to me. If the government controls the buildings to the exclusion of the Tribe, for whom the government holds the buildings in trust, it must take reasonable steps to make sure that the buildings are not lost. The court went on to find that if the United States had allowed the buildings to fall into disrepair, thereby breaching its fiduciary duty, it would be liable for money damages resulting from its breach.

I think that the court's reasoning is very solid, but there is something missing that I can't put my finger on, and it doesn't appear in the government's brief. The United States set up the trust for the benefit of the Indians, but I doubt that it intended that it would be responsible to repair and refurbish the buildings after 40 years of use. Unfortunately, my knowledge of trust law is even more limited than my knowledge of Indian law. Nevertheless, I boldly, but with minimal confidence, predict that the Court will REVERSE.