UNITED STATES v. WHITE MT. APACHE TRIBE

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Argument of Gregory G. Garre

Justice Stevens: The Court will hear argument in United States against the White Mountain Apache Tribe.

Mr. Garre.

Mr. Garre: Thank you, Justice Stevens, and may it please the Court:

In 1960, Congress declared the former Fort Apache military post to be held in trust for the White Mountain Apache Tribe.

The specific--

Justice O'Connor: What condition was it in in 1960?

Was it basically like it is today, or has it gotten worse?

What was it like then?

Mr. Garre: --Well, it... it's certainly much older today.

It's about 40 years older today.

The condition the... the legislative history doesn't discuss the condition of the fort in particular detail.

It's important to recognize that the military fort was built for temporary use... today, some... almost a century ago, and in 1960 had been built for temporary use, you know, more than 50, 60, or 70 years ago.

So it wouldn't at all have been surprising if there had been a state of decay in 1960.

And of course, when Congress passed the 1960 statute, there was no indication at all... certainly not on the face of the statute, or in the legislative history that's contained in respondent's lodging... that it had in mind a historic preservation goal, or that it had in mind that... that it would require the Secretary of the Interior to undertake the enormous financial responsibility of having to restore a century-old fort.

Justice O'Connor: --making use today of a portion of the structures there for the school and administrative needs?

Mr. Garre: Absolutely, Justice O'Connor.

The... the vast majority of the buildings and historic district area of Fort Apache are used today for school and administrative purposes.

The Bureau of--

Justice O'Connor: Are those maintained in some fashion for that use by the Federal Government?

Mr. Garre: --They are.

As we point out in note 1 of our reply brief, the Department of the Interior has spent more than $3 million over the past decade or 15 years on repair and maintenance projects at the fort.

It's also true that the tribe itself has engaged in historic restoration efforts at the fort with the support of the Bureau of Indian Affairs and the Department of the Interior, and with the assistance of private, State, and even... in some cases... Federal tax dollars.

Justice O'Connor: Well, the U.S. Government does hold the property in trust for the tribe... the White Mountain Tribe.

Right?

Mr. Garre: That's true.

Just like the U.S. Government--

Justice O'Connor: And what basic responsibility does that entail, would you say, the fact that the Government is a trustee?

Mr. Garre: --Well, when Congress places land in trust for Indians, it has two well-settled meanings that this Court has recognized.

First, it places a restraint on the alienation of property, and second, it immunizes the property from State taxation.

And if you look at pages 6 and 7 of the respondent's lodging, that indicates that in 1958, when there was discussion about what to do with Fort Apache, the tribe itself encouraged the Department to have Congress place the land in trust so that it was in a nontaxable status like the surrounding reservation lands.

Now, we know from the first Mitchell decision decided by this Court that simply placing property in trust does not in itself create a substantive right to money damages.

Justice Ginsburg: But there was an enormous difference in that case in that the Indians managed the land.

Under the General Allotments Act, the idea was to make the individual owner autonomous.

Here, I think it's not disputed that this land has been operated by the U.S. Government, and the U.S. Government has exclusive control.

Mr. Garre: Justice Ginsburg, that... that may be true in the factual sense, but the 1960 act... that is, that the Federal Government is using the property, but the 1960 act... quite unlike the General Allotment Act... specifically reserves to the Government the right to use the property for Government uses.

And in that respect, we think the trust relationship created by the statute in this case is much more limited than the one that was created by the statute in Mitchell I, and the existence of factual Federal control cannot in itself give rise to a damages action under the Tucker Act.

Justice Ginsburg: Can you just explain one small point to... to me?

I know what "school purpose" means.

What is "administrative"?

Is that administrative in connection with the school, or some free-floating administration?

Mr. Garre: Well, I... I think generally, the "administrative use" can refer to executive uses, and is a very broad term.

In that respect, I think it's instructive that Congress used that term.

Nevertheless, I think that... that "administrative purposes" has to be read with school purposes, and can be read to refer to both uses for storage and the like, and also for administrative purposes used by the Bureau of Indian Affairs to undertake activities at Fort Apache or... or on the surrounding reservation.

So in that respect, it's administrative for the purpose of the Department of the Interior, who operates activities there through the local agent of the Bureau of Indian Affairs.

Now--

Justice Souter: Mr. Garre, is... is any of the... or let me ask you an open-ended question.

How much of the property which is the subject of this claim was within the Government's control throughout this period, and how much of it was not?

Mr. Garre: --Oh, well, our position would be that the vast majority, if not all, was... well, that's not true.

The... the vast majority of the property has been within the Government's control, but it's important to recognize that the court of appeals' decision remands for building-by-building, in a sense, trial on the existence of Federal use and control.

And the tribe does have access to the Fort Apache property.

The tribe is there.

The tribe even has a... a cultural museum that it operates on the property.

So it's... it's not as though this is a Federal enclave--

Justice Souter: Well, is the tribe making... is the tribe making a monetary claim with respect to property which it has had in its control, as distinct from the Government's, during this period?

Mr. Garre: --If you look at appendix A to the tribe's complaint, which... which has a detailed building-by-building analysis of the ways in which the building don't meet certain requirements, I think it's fair to say the tribe's damages claim extends to all the buildings at Fort Apache and that, therefore, it may extend to buildings over which the Federal Government is not... have any active use or... or control.

But we don't think that a damages action can be brought against the United States based on some fact-bound, manipulable notion of Federal control.

Justice Souter: No.

I... I realize that.

I realize that.

Mr. Garre: Under the Tucker Act... and this Court emphasized it in the Mitchell decisions, and it's emphasized it in other decisions... a substantive right to damages against the United States... which, after all, is a right to damages against the public fisc... has to be grounded in a source of substantive law.

Justice Kennedy: Well, if... can we talk just for a moment about the analogy?

And we'll call it just that, the area of private trusts.

I... I take it that usually a trustee, who has the obligation to repair buildings for the beneficiaries so they don't fall into disrepair, does so at the beneficiaries' expense.

Mr. Garre: That... that's true.

Justice Kennedy: And that... that didn't seem to figure into your argument.

Again, it... it struck me, as... reading the briefs... that that was an argument... you don't really make that argument.

Mr. Garre: Well--

Justice Kennedy: Is that because the trustee here is both the beneficiary... is... is a co-beneficiary of the trust?

Mr. Garre: --That is true and it's much unlike the typical common law trust, but the... the most fundamental reason, Justice Kennedy, is we don't think that a court should have to plumb through the common law to determine whether or not Congress established a right to damages against the United States in this case.

And it's also true... if you look at the common law, the first thing you... you're met with... with... is with the general rule that you can't get breach of trust damages against the sovereign.

So you'd have to get... not only you'd have to get around the courts--

Justice Scalia: Well, but that... but, I mean, that's the whole purpose of the Tucker Act.

I mean, to... to plead sovereign immunity begs the question.

Unknown Speaker: That's exactly the question before us.

Mr. Garre: --Well, and I agree, Justice Scalia, and we think that that question should be answered by looking to the act of Congress on which the tribe relies, which is the 1960 act.

Justice Kennedy: Well, but it would have seemed to me, following Justice Scalia's question and my own, that if the law of trusts gave a clear indication one way or the other that there was a liability, then the Tucker Act analysis might... might be different accordingly.

Mr. Garre: With respect, I disagree.

And I think the Mitchell I case establishes that.

In Mitchell I, both the Court of Claims and the dissenters on this Court reasoned that because the General Allotment Act placed land, quote, in trust, that therefore one could look to the common law and therefore one could import into the Tucker Act all the liabilities that would follow against a private trustee, even liabilities that would result in damages actions.

A majority of this Court rejected that analysis.

Now, in Mitchell II, the Court specifically affirmed the result in Mitchell I, and it emphasized that Mitchell II was different because in that case, the Court had statutes and regulations that created specific management duties that could be fairly interpreted as mandating the payment of compensation for the breach of those duties.

Now, the court of appeals recognized at page 18a of the petition appendix... and the... even the tribe recognizes on page 11 of its brief... that the 1960 act doesn't set forth any specific management duties on the part of the Government.

Justice Kennedy: Do you think the Government could have just destroyed the property or the structures on the land?

Mr. Garre: Well, I... Justice Stevens, I think that the notion that the Government would destroy the property, if it did so in a way that was clearly inconsistent with the terms of the act--

Justice Kennedy: Let me put it another way.

Do you think they had a duty not to destroy the property?

Mr. Garre: --That... that duty, if it exists, comes from ordinary tort principles and from principles of just compensation under the Fifth Amendment.

And those claims haven't been asserted in this case.

This case involves a breach of trust action, a claim for damages based on the alleged breach of trust which the tribe grounds in the 1960 act, and--

Justice Kennedy: No, I understand.

But part of the question we have is to what extent did the Government assume duties beyond immunizing the property from State taxation and preventing its alienation.

Did they have any additional duties?

And I'm not clear on whether you've told me they had a duty not to destroy it or not.

Mr. Garre: --Not under... under the 1960 act, the statute in this case.

Now, if the Government had--

Justice Kennedy: But did they... from any source, did they have a duty not to destroy it?

Mr. Garre: --I... I think... I think it would, Justice Stevens.

If I could respond by... by maybe running through some hypotheticals--

Justice Kennedy: You'd help me if you responded yes or no, to be honest with you.

Unknown Speaker: [Laughter]

Mr. Garre: --Yes, it would under the Fifth Amendment to the Constitution if Congress sold the fort to someone else, or if Congress destroyed the fort.

Then the tribe might have a claim for just compensation.

The tribe has referred to some just compensation cases in its brief, but it hasn't brought a just compensation claim in this case.

The tribe also might seek to bring a damages action under the Federal Torts Claimed Act... Tort Claims Act for some kind of destruction of property.

The tribe hasn't brought that--

Justice Ginsburg: So you are... to this extent, you're differing from counsel's position before the Federal Circuit, because I believe at that level, counsel was asked if the United States could dynamite all the buildings to the ground with no liability to the tribe, and the answer was yes.

Mr. Garre: --Well, it's... it's not clear to me the context in which that question came up.

But I also think that it's true that if the Secretary decided that it was necessary to level a building because it proves an attractive nuisance to school children, or because it was desirable to build a more... newer and better educational facility at the fort, that the 1960 act would authorize the Secretary to do that.

But... but we do recognize that there are other principles in this area stemming from the Fifth Amendment, a source of substantive law, stemming possibly from the Federal Torts Claims Act, another source of substantive law, which aren't invoked in this case, which might be implicated based on the Government's management of the property.

Justice O'Connor: Well, how about Mitchell II?

Mr. Garre: Well, in Mitchell II, Justice O'Connor, the statutes and regulations there, which... which the Court described as a pervasive, statutory scheme governing Indian timber management, provided specific fiduciary management duties that could be fairly interpreted as... as mandating payment of compensation.

They... they specifically govern the generation of profits or proceeds for the Indian tribe, and in that case, the Court held that the violation of those duties, grounded in a statute or regulation, gave rise to a money damages action under the Tucker Act.

This case is--

Justice Kennedy: Well, how would... how would you describe the duties the United States has as trustee with relation to this property?

How would you describe the sum total of its duties?

Mr. Garre: --I think the... the principal duties are the ones that the Court has always recognized when it places land in trust: not to alienate the land and... and it immunizes it from State taxation.

Justice Souter: In... in effect, I think what you're saying is that there are no trust duties.

There's a peculiarity here.

The word trust in... as you're using it in the argument, simply has those two implications: don't give it away and place it in a... in a condition or... or, by virtue of the word trust, it is in a condition to avoid taxation.

Mr. Garre: Well--

Justice Souter: I think you're saying that there are no fiduciary duties beyond that.

If there is any duty beyond that, it's got to come from the Constitution, or it's got to come from a specific provision of... of a statute creating a duty not necessarily as... as that of a trustee, but simply as a statutory duty.

Isn't that correct?

Mr. Garre: --That's correct when the tribe comes into court under the Tucker Act and asserts a claim for monetary damages against the United States Treasury.

We're dealing against an area of sovereign immunity where the United States is immune from damages for breach of trust unless Congress--

Justice Souter: But I think you're saying two things, and they... they mesh perfectly.

One, you're making a sovereign immunity argument.

Two, you're saying there is no trust responsibility whatsoever on the part of the trustee except not to alienate.

Mr. Garre: --Not enforceable in an action for monetary damages.

Of course, in this area, the Court has recognized--

Justice Souter: So you are conceding that there... that there might be equitable remedies based on... on a theory of fiduciary duty?

Mr. Garre: --It's conceivable that there would be an equitable remedy based on a violation of statute, not on equitable duties.

This is... this is a realm--

Justice Souter: So that if... may... may I just, you know--

Mr. Garre: --Yes.

Sorry.

Justice Souter: --pursue the example that Justice Stevens used?

If the Government said, 30 days from now, we are going to blow up all the buildings, there would be a... an... an equitable remedy based upon fiduciary duty?

Mr. Garre: I think in that situation, Justice Souter, the tribe might be able to bring an injunction... injunctive action perhaps under the APA claiming that that use of the property, the destruction of it, would exceed the scope of the Government's use right under the 1960 act.

Justice Souter: Well, is that... I... I don't understand what you're saying.

Mr. Garre: That... that would be under statute, not on some--

Justice Souter: So... so you're saying that would not be based on fiduciary responsibility?

Mr. Garre: --Well--

Justice Souter: If... if it exceeded the Government's use right, what... what other obligation... what would be the source of... of a... of an obligation if... if it was not fiduciary duty?

Mr. Garre: --I think it could be a property interest as well.

I mean, we acknowledge that the 1968... the 1960 act gives this tribe--

Justice Souter: But the property interest takes into consideration the trust relationship, doesn't it?

Mr. Garre: --Well, it doesn't necessarily have to.

The Court has had many cases brought by Indian tribes claiming just compensation under the Fifth Amendment of... of property, which... at least in some management... some aspects would have a trust in it.

Overlapping all this area is the notion that the Government has political and moral responsibility to the Indian tribes, and the Court has recognized that throughout its decisions since--

Justice Kennedy: Well, but... just... just to put Justice Souter's question back before you... and my own: What trust duties does the United States have in addition to not alienating the property, and making sure that it's immune from State taxation?

I think your answer is it has no fiduciary obligations at all.

There may be some obligations under the Fifth Amendment to protect property, et cetera, but as a trustee, it has no fiduciary obligations other than the ones that are mentioned.

Mr. Garre: --The United States has general fiduciary obligations to the Indian tribes that this Court has recognized.

But the Court has never recognized... and I think it rejected the notion in the Mitchell I case that--

Justice Kennedy: Well, but do those general obligations with reference to this property import any duty other than the duty not to alienate and to ensure that it's immune from State taxation?

Mr. Garre: --Not a duty and certainly not a duty that's enforceable in an action for monetary damages.

Justice O'Connor: Well, I would have thought there might well be a duty for the trustee... the U.S. Government acting as trustee here... not to lay waste to the property held in trust for the tribe--

Mr. Garre: Well--

Justice O'Connor: --not to affirmatively lay waste to it or... or allow something to happen that just the ordinary care would suggest should not happen.

Mr. Garre: --Justice O'Connor, that duty certainly is not expressed in the terms of the 1960 statute, and... and, of course, there are other statutory--

Justice O'Connor: Well, except to the extent that the statute does say, all right, this property, Fort Apache, is to be held by the U.S. Government in trust for the tribe.

And maybe that conveys some notion, in addition to not alienating it, not laying waste to it.

Now, whether what's done fits that I don't know.

Maybe ordinary wear and tear isn't covered, but--

Mr. Garre: --I... I don't think that that position would be consistent with the Court's ruling in Mitchell I, where the Court rejected the notion that the use of language, in trust, subjects the United States to all the liabilities of a private trustee.

Justice O'Connor: --Well, there's a little more here than was true in Mitchell I. It's specific property, hold it in trust, and the Government can use it for a school or administrative needs, but there... there's something more than was in Mitchell I.

Mr. Garre: With respect, I think that there... there's less, Justice O'Connor, that... that Congress specifically carved out of the trust relationship the right of the Government to use the property for the Government's purposes.

Justice Ginsburg: Mr. Garre, there... there is one significant difference, and that is the control element.

Mitchell I stressed that the control was with the allottee.

Mitchell II has a whole paragraph that says what's key is who has control.

And as I read it, it was that these specific instructions were an indication that the U.S. had exclusive control, but that the real thing was the control, who has control of this property.

Mr. Garre: But... but there's a key difference, Justice Ginsburg, between this case and Mitchell II with respect to the question of control.

In Mitchell II, the Court emphasized throughout its decision and... and discussed the statutes and regulations in detail for more than four pages.

The control stemmed from specific statutory and regulatory duties that were created by Congress in that case, and the Court found that the violation of those specific duties, which could be fairly... fairly interpreted as mandating compensation, gave rise to a damages claim against the United States.

In this case, the tribe can't point to a single statute or regulation, and the only statute it relies in this case... in this Court is the 1960 act that creates any--

Justice Ginsburg: Well, then you're... you're reading it differently than I have just set it out.

As I take the Court to have said control is key, and these specific regulations show that there is indeed control, that the United States runs the show.

But the nature of this trust, there wouldn't be any instructions.

You wouldn't expect there to be detailed instructions.

The question is who was in control.

Mr. Garre: --Well, there... there is no specific management duty in this case.

Instead of the situation in Mitchell I or Mitchell II, Congress gave--

Justice Stevens: Can I interrupt with just one... one question?

The trust here refers not only to the land but to the improvements.

Unknown Speaker: Doesn't that make a difference?

In a... in a private situation wouldn't that normally create in the... the trustee a duty to ensure against fire, and to take care of the improvements as opposed to just bare legal title to the property?

Mr. Garre: --It... it might, Justice Stevens, but I think the reference to that also is important in terms of Congress' express delegation to the Secretary the duty to use all of the trust property, the land and the buildings, to operate an Indian school there, which is the... the use that... that the property had been put since the 1920s.

Unknown Speaker: So in your... in your opinion, if this statute had added the words, and if the Government does take control, it shall use ordinary prudence and skill to preserve the property, then they'd have a claim.

Mr. Garre: It... it certainly would be a much--

Justice Breyer: Is that yes or no.

Mr. Garre: --different case.

Justice Breyer: No.

Yes or no.

Mr. Garre: I... I think... if I can analyze that claim.

I... I think they... they might have a claim, Justice Breyer.

Justice Breyer: When you say might, I'm just imagining the same statute, everything that's gone on this morning, and it says if they take control, they shall use ordinary skill and prudence to preserve the property.

Mr. Garre: The--

Justice Breyer: The answer then is yes or no?

Mr. Garre: --Well, I think it would be no, Justice Breyer, and if I could explain why.

Justice Breyer: It would be no even then.

Then what have we been arguing about--

Mr. Garre: Well--

Unknown Speaker: --because, I mean, everybody has been asking you whether that can be implied here?

Justice Breyer: And my impression was you said yes.

I mean, if it--

Mr. Garre: --Congress creates a number of duties.

And Congress has legislative... of course, in the area of historic preservation, and it creates duties that the courts below found are procedural in nature.

Unknown Speaker: --And so if they said, and by the way, if in fact they take control, the trustee... i.e., the United States... has a duty when they take control to use ordinary skill and prudence to preserve the property.

Mr. Garre: Then the statute... they would... they would have a specific management duty.

And then the question--

Unknown Speaker: And so the answer is then they would have... they could... then they'd win.

Right?

If it said that.

Mr. Garre: --I... I think they might under that situation.

Unknown Speaker: Okay, fine.

Mr. Garre: But there's a second question under the Court's cases that the Court would have to answer it, and that's case two, and that's whether or not that specific statutory duty can be fairly interpreted as mandating the payment of compensation.

Unknown Speaker: And it adds, and indeed if they violate this, they have to pay a lot of money.

Mr. Garre: Of... of course, in that situation.

Unknown Speaker: Okay.

Then we're all right.

Mr. Garre: Of course, in that situation--

Unknown Speaker: So our issue here... what I'm getting at is our issue then is whether that word control implies those latter words--

Mr. Garre: --Well--

Justice Breyer: --that were, in fact, left out.

That's the question.

Is that right or not?

Mr. Garre: --I don't think it's the question because the word control doesn't appear anywhere in the face of the statute.

Justice Breyer: I'm sorry.

I... I was reading... it's subject to the right of the Secretary of Interior to use any part of the land in improvements.

Mr. Garre: Right.

Justice Breyer: So I... we have to decide right to use... does that imply those words that are left out.

Mr. Garre: Right.

Justice Breyer: It didn't say he had to use it, did it?

Mr. Garre: No, not at all.

Justice Breyer: No.

Justice Scalia: So in order to say he controlled it, you... you would have to say he--

Justice Breyer: --I misspoke.

I'm sorry to have mixed people up.

Mr. Garre: Right.

Justice Breyer: I meant right to use.

Does it imply the words that are not there when they use it?

Mr. Garre: Yes.

And... and I think... and if I could be more clear, I think that we think the Court's cases and the Tucker Act... and... and we think can also look to cases in the section 1983 context... establishes a two-step inquiry.

First, has Congress created a specific duty on the Government's part, and second, can that duty be fairly interpreted as mandating a payment of compensation breached?

Justice Breyer: How does it work in other areas of real estate law, where suppose I turn my beach house over to a friend and he has a wild party and destroys it?

Do I have a claim against him if I had no knowledge he would do such a thing?

Mr. Garre: Conceivably you might have a tort claim, Justice Breyer, but that's not a claim that's--

Justice Breyer: So normally is it the case when you give or lease or give property to other people if they wreck the place, contrary to expectation, we imply into those promises or words that they had to take reasonable care?

Mr. Garre: --Possibly as a breach of a contract or a tort--

Justice Breyer: All right.

Mr. Garre: --violation.

Justice Breyer: If we normally do that in the law, why would we not do the same thing here where, indeed, in addition to what you normally have, you have this word trust and special relationship?

Mr. Garre: I think the Court refused to do that in the Mitchell I case because there, the Court used the language, in trust, and it refused to--

Justice Scalia: Well, it wasn't a question of laying waste in Mitchell I, was it?

It was just a question of not using the land to its utmost financial benefit.

Mr. Garre: --Well, that's true, Justice Scalia.

And--

Justice Scalia: So the question he's asking you is... is destroying the land.

You say in your... you quote in your brief Austin on trusts to the effect that there is a fundamental difference between a private trust and a public trust.

What... what kind of cases is... is that... is that section referring to?

Mr. Garre: --Well--

Justice Scalia: I mean, suppose I leave my... my house to the City of Falls Church in trust for the people of Falls Church.

What... what obligations are imposed on the City of Falls Church?

Mr. Garre: --I think what the... I mean, there you might have a situation where the question is whether you could enforce obligations against a private individual who left it in trust.

Here we're talking about a situation where the--

Justice Scalia: No, no.

I'm talking about imposing... what obligations are imposed upon Falls Church.

Mr. Garre: --You could impose... you could--

Justice Scalia: I leave property to Falls Church in trust for the people of Falls Church or in trust for some category of the... of the people of Falls Church.

Mr. Garre: --I think the Restatement provisions--

Justice Scalia: The Little League or something.

Mr. Garre: --that we referred to incorporate the doctrine of sovereign immunity in this area, and you could impose possibly injunctive--

Justice Scalia: Oh, is that all that... that Scott on trusts was referring to, just the doctrine of sovereign immunity?

Mr. Garre: --Well--

Justice Scalia: Because if that's all he was referring to, you know, that's been waived by... by the statute here.

Mr. Garre: --No.

Justice Scalia: I thought there was something quite different he was referring to, that the whole nature of a public trust is different from a private trust.

If that's not the case, then all of that is quite irrelevant it seems to me.

Mr. Garre: I... I think it's both, Justice Scalia, that the public trust is different in that we don't ordinarily assume that the Government acts in all its capacities as a private trustee.

And that's certainly true in the Indian law context.

This Court... there are more than 56 million acres of land that the Government holds in trust.

If the Court assumed just by Congress' use of the word in trust, the Government had assumed all the liabilities of... of a common law trustee, then that would be an enormous potential liability that there's no indication whatsoever Congress ever agreed to assume.

Justice Souter: Okay, Mr. Garre.

You're... you're arguing that you can't infer from the use of the word trust that all of the obligations and all of the potential liabilities of a private trustee are carried by it.

But your argument seems to go, if I understand it, to the other extreme, that the use of the word trust seems to imply no obligation and no responsibility unless it is followed by a specific delineation of what those responsibilities are.

And my question is... Justice Breyer a minute ago was saying, well, what would be different if we added certain words.

And my question is what would we... be different if we subtracted certain words on your theory?

What if the statute had not included the words, in trust?

Wouldn't your argument be exactly the same?

Mr. Garre: Under the Tucker Act... and, of course, the Tucker Act doesn't refer to claims for breach of trust.

Justice Souter: No, but would you answer my question?

Wouldn't you be... aren't you making the same argument under a statute that says in trust that you would be making under a statute that did not include the words, in trust, at all?

Isn't that so?

Mr. Garre: Yes.

That... that's true, Justice Souter.

But I... I think--

Justice Souter: Then you... what... what are we to do with the usual canon of construction that we assume that Congress does not use useless words?

Mr. Garre: --Those words had great effect here.

They had the same effect that the words have... this Court has recognized... with respect to the alienation of land and with respect to immunization of land to State taxation.

Justice Souter: Yes.

They... they couldn't alienate under a statute that says the... the land and et cetera will be held by the United States for the tribe.

Taxes couldn't be levied by lesser sovereigns against lands held by the United States under those circumstances.

Mr. Garre: Those... those--

Justice Souter: It seems to me that the word, in trust, means nothing.

Mr. Garre: --No.

With respect, I would disagree.

It has those two settled consequences.

We know from pages 6 and 7--

Justice Souter: But why would you not have those consequences without those words?

It's true if you have those words, the consequences follow.

But wouldn't the consequences follow without the words?

Mr. Garre: --No.

Justice Souter: And if in fact that's all the Government... if that's all Congress was getting at, why didn't Congress simply say that instead of using the phrase, in trust, that normally carries enormous implications?

Mr. Garre: The... that... that line of argument is the argument that we think that the court of appeal... the Court of Claims made in Mitchell I and that the dissenters made in Mitchell I, and we think that the majority of the Court rejected--

Justice Souter: And... and Justice Ginsburg has suggested that maybe the... the significance of that line of argument depends on whether there was or was not control.

But I think--

Mr. Garre: --In the factual sense.

Justice Souter: --on your argument, I think what you're telling us is that Mitchell I... and in any event your argument... has the implication that those words add absolutely nothing.

Mr. Garre: No, no, Justice Souter.

That's not the implication of our argument.

They do have the accepted meanings.

The United States holds land in trust.

It is immunized from State taxation.

If the tribe itself held it or private Indians held it, it wouldn't be subject... it would be subject to State taxation.

Justice Souter: What if the Government of the United States held it?

Mr. Garre: Well, it does in this case, and that's the significance of holding it in trust.

Justice Souter: Yes, and it... and it would do so under the statute if the words, in trust, weren't used.

Mr. Garre: That... that... it also has... in this case it has the effect of making the lands here like the surrounding reservation lands.

And... and again, I think pages 6 and 7 of the tribe's lodging helps to make that point.

If I could reserve the remainder of my time for rebuttal.

Thank you.

Justice Stevens: Mr. Brauchli.

Argument of Robert C. Brauchli

Mr. Brauchli: Justice Stevens, and may it please the Court:

If the Secretary of the Interior had never taken control of these buildings, we would not be here.

It would be a... a bare trust.

Simply putting these buildings in trust does not create any fiduciary obligations.

But the Secretary did take control.

It's not mandatory; it's voluntary.

And that's why this case is exactly like Mitchell II.

In Mitchell I, there's no nexus between the General Allotment Act and managing a forest.

But when you look at the forest management statute, there's a direct nexus from the forest management statutes to control of the forest, and when you control the forest, to the exclusion of the tribe, then you are responsible as a fiduciary.

Justice Scalia: But the control... the control here was not control given for the benefit of the tribe.

To the contrary, it was control given for the United States' own use.

It seems to me that's... that's quite different.

I agree that if... if you... you say the United States shall control it for the benefit of... of the tribe, you might have a different case.

But that's not what this statute said.

It said the United States shall control it for its... its use, running an Indian school and so forth.

Mr. Brauchli: Justice Scalia, I respectfully disagree.

Justice Scalia: Administrative purposes.

Mr. Brauchli: The... the benefit to the tribe... Congress stripped the United States of all fee simple, absolute title and gave 100 percent beneficial title to the tribe.

The United States has no retention of ownership whatsoever.

They have a use easement, and that's all they have.

A very limited right.

And the benefit is what Congress said, and Congress said, we're going to take this fort, which we established to kill Apaches and imprison them, and we're going to give it to the White Mountain Apache Tribe.

And they gave it, and it has value.

It has 35 buildings.

It has 7,500 acres.

Now it's only... you know, we're down.

We're talking about 288 acres.

Justice Scalia: I thought the fort was to protect white settlers.

But you... you know, you can describe it the way you like.

Mr. Brauchli: Well, it was to protect white settlers--

Justice Scalia: Okay.

Mr. Brauchli: --but from my clients' viewpoint, it was established to conquer them.

So that's what I'm here for, my client.

Justice Scalia: Yes, I understand.

Mr. Brauchli: And there was a benefit.

And the... the benefit said... it's been postponed because the United States Secretary reserved a very limited right to use it for a school--

Justice Kennedy: I... I want to make I understand your argument.

If the Government had, after this statute was enacted, said, you know, we really don't have any interest at all in these buildings, and just let them go to waste, but they didn't use them in any way, there would be no liability?

Mr. Brauchli: --Absolutely none.

Before March 18, 1960, they could have--

Justice Stevens: Why?

I mean, what... what kind of a theory is that?

If... if the Government occupies the buildings and... and by that preserves them in a small sense, they're falling apart, but at least it's better than a complete... complete abandonment, they're liable, but if they completely abandon them, they're not.

I... I just don't understand that.

Mr. Brauchli: --Justice Kennedy, if I understood your question, I thought you meant before March 18, 1960 when they owned it--

Justice Stevens: No, no.

I mean after 1960.

Mr. Brauchli: --Oh.

Justice Stevens: I thought your initial argument was that after 1960, once the Government took control by, i.e.... by that I thought you meant possessing the buildings--

Mr. Brauchli: Occupying.

Justice Stevens: --it had a duty, but that if it had not possessed the buildings or occupied the buildings, it would have no duty.

Mr. Brauchli: Yes, that is true.

That's what I'm saying.

The... the fact is that they occupied--

Justice Stevens: I... I just don't understand that.

Mr. Brauchli: --They occupied and physically controlled the buildings.

If... for instance, we are not filing a claim for the four buildings.

There's only 4 buildings out of 35 being used for a school right now.

The... four.

And so we're not filing a claim for those, and they just... they just sprang for 3 and a half million dollars to fix those up.

But the other buildings that they have used and occupied and destroyed and... and some... they've demolished four... those are the buildings that we have a claim for.

And we say we're not charging you for trespass.

We're not charging you for reasonable wear and tear, but--

Justice O'Connor: Well, since 1960, did the U.S. use some of the buildings other than it's now using?

Mr. Brauchli: --Yes, and the reason that they have fallen off from use is because the enrollment went from 500 students down to about 80.

Justice O'Connor: Well, if there are 35 buildings on the premises, how many did the Government use since 1960?

Mr. Brauchli: The Government used all of the buildings.

They physically occupied them.

Justice O'Connor: All of them.

Mr. Brauchli: Yes.

Justice O'Connor: Physically occupied all 35?

Mr. Brauchli: Yes, they did, and they used them for storage and for schools.

Justice O'Connor: Since 1960.

Mr. Brauchli: Yes.

And so it's been under the exclusive control.

But as--

Justice O'Connor: And now it physically occupies 4 of the 35.

Mr. Brauchli: --Four for school and about six for its administrative use.

Justice Scalia: Mr. Brauchli, would you give me your view on the hypothetical that I asked your... your colleague on the other side?

Suppose I leave property to the City of Falls Church.

The City of Falls Church takes possession.

It's not occupied by anybody else.

And it's... it's in trust for the people of Falls Church.

The City of Falls Church takes possession.

It doesn't do anything with the land.

It just leaves it there.

Now, in the law of trusts, that... that would be wasteful, and the trustee would have to use the land in order to generate income for the people of Falls Church, or at least do something for the people of Falls Church.

Do you think the City of Falls Church would be in breach of trust?

Do you know of any lawsuits against cities or any public entities that... that have accepted land or other property in trust?

Mr. Brauchli: If... if the land is being... as I understand the question, you... you are leaving this to Falls Church and as a beneficiary--

Justice Scalia: It's a lot.

It's a great big lot, and I say, you know, I'd like to leave it to the City of Falls Church and I do.

And the City of Falls Church doesn't do anything with it, just leaves it there.

It could have built a... you know, an apartment building and gotten a lot of income for the city coffers.

It could have built a baseball diamond or whatever.

It just leaves the lot there.

Mr. Brauchli: --That is not our situation--

Justice Scalia: Is that a lawsuit?

Mr. Brauchli: --I don't know because--

Justice Scalia: Well, but that's crucial to your case here--

Mr. Brauchli: --I don't--

Justice Scalia: --it seems to me.

Mr. Brauchli: --Well, I don't think--

Justice Scalia: I think it goes to the point of whether a public trust is the same thing as a private trust.

Mr. Brauchli: --Well, this is a private trust.

I think this is a private trust, and it's not a public trust.

But it's--

Justice Breyer: Even if it were, I guess the real analogy would be it goes to the City of Falls Church to be held in trust for the public to be used as a school for as long as they want it, and thereafter to go to the archeological society for preservation.

And now they run it down as a school, and the question would be can the archeological society now sue them for the loss.

I don't know.

Maybe it can.

Well, this... this doesn't say that it goes to the archeological society--

--It goes to the tribe.

Justice Scalia: --or that it goes to the Indians afterwards.

It just says, in trust.

Mr. Brauchli: --Justice Scalia, I think you're saying that... you're talking about a situation where the beneficiary doesn't do anything with the property.

If the... if the... I think the analogy would be... that you're making is if the White Mountain Apache Tribe did nothing to their property.

Then that's their choice.

But if you as the trustee went in there and destroyed the property that you were going to give to the--

Justice Scalia: I'm not talking about destroying it.

Mr. Brauchli: --beneficiary of Falls Church, that's our situation.

Justice Scalia: Yes.

I'm putting destroying it aside.

I'm... I'm just saying that the City of Falls Church doesn't do anything with it.

It does not do what a trustee would normally have to do, and that is produce income from it, or... or use it in... in some way that will benefit the... the cestui que trust.

Okay?

It just leaves it fallow.

Mr. Brauchli: And they're a trustee.

Justice Scalia: And... and I don't know of any lawsuits in which in such a situation a citizen could say, you know, I'm... I'm a citizen of Falls Church, and you are wasting my... my trust estate.

Justice Breyer: No.

I don't even know of one that says I have my forest which I leave to the people of Falls Church, and lo and behold, 20 years later, that forest is a wreck.

They cut every tree.

And I don't know if the citizens of Falls Church can sue there either, but I know the Indians can.

Mr. Brauchli: I don't... I think there's a different... there's... this Court unanimously last term in the Klamath case said that the fiduciary relationship, the trust relationship, between the United States and the tribes is the primary cornerstone of Indian law.

It was a unanimous opinion.

There's a special trust relationship between the Indian people and the United States Government and when the United States--

Justice Kennedy: But does that... does that extend to a requirement that the United States spend its monies rather than the tribe's monies to preserve the land?

Suppose in this case that some basic erosion systems were needed because the land was eroding, endangering the... the topography, and some simple irrigation rivulets or... or drainage rivulets would... would save the property.

Would the United States have the obligation to perform those... those repairs?

Mr. Brauchli: --Yes.

Yes, they do.

Justice Kennedy: At its expense?

Mr. Brauchli: Yes.

Justice Kennedy: What... what authority do you have for that?

Mr. Brauchli: Because they--

Justice Kennedy: That's... that's certainly not a... a trustee doesn't have the duty to repair at his own expense in... in a private trust.

Mr. Brauchli: --Well, this is not a... I... the United States, if they are... the beneficiary is the tribe, and I think when you have a trustee in control and occupying, they... according to the treatises I read... read, there's an absolute obligation to protect and preserve the beneficiary.

Justice O'Connor: Not at the trustee's own expense.

That's the point.

The... the trust itself has to provide the means, the... the financial wherewithal to make those repairs.

This isn't a duty financially imposed on the trustee.

Mr. Brauchli: Well, I just disagree with that.

When the United States is the trustee--

Justice O'Connor: Well, you'd have to have some authority.

You may disagree, but how... how do you find it out of trust law?

Mr. Brauchli: --Okay.

My authority is the Mitchell II which was a waste case as well as a benefits case because in that case, there was a requirement to manage the forest on a sustained yield basis, and if--

Justice Kennedy: All right.

If your--

Justice Scalia: --Waste... waste is different.

Justice Kennedy: If your answer to me--

Justice Scalia: --Waste is different from doing something that costs money, and the money has to come from somewhere.

And... and do you think the United States could sell off a piece of this to private hands in order to obtain the money to renovate these buildings?

Mr. Brauchli: --No, but they did appropriate money--

Justice Scalia: So you're... you're urging then that ordinary trust law does not apply in the case of a public trust.

Mr. Brauchli: --Well, I think that the trust relationship between the United States and Indian tribes is sui generis.

Justice Scalia: Okay.

Mr. Brauchli: You cannot import the common law wholesale into a... this type of situation.

Justice Kennedy: Based on your answer you gave to me about the hypothetical about the erosion occurring, it... it would seem to me that if the United States has an affirmative duty in that case, the fact that it occupied or didn't occupy the buildings does not alter its duty to keep those buildings in repair.

Its occupancy and use has nothing to do with the case--

Mr. Brauchli: Well--

Justice Kennedy: --because in my hypothetical they didn't occupy or use the land.

Mr. Brauchli: --Well, the complaint is for... for damage to the infrastructure for failure to keep up the... the water and sewer system, the electrical system, as well as the buildings that they used and controlled.

They had total, exclusive control.

Justice Ginsburg: But if they didn't... in Justice Kennedy's question, if the United States didn't use it for administrative and school purposes, then the United States, under the terms of the trust, has no right to hold it because they have this exclusive right of occupancy only for those purposes.

And if they just let the... then it would be... wouldn't it belong to the tribe?

Mr. Brauchli: It expires and they... they said that in the court of appeals below that the... the circuit judges said, well, can you use it as a uranium dump?

And the Department of Justice said, no, because that would be a breach of the trust because we're only allowed to use it for school or administrative purposes.

Therefore, a uranium dump would be outside the use allowed.

I think waste is a use outside what Congress allowed them, and it's a specific use and it should be construed against the easement.

The easements are not wide open.

Justice Stevens: Yes, but I'm not sure you confront the question, and I'm not sure what the answer is.

If the waste... duty to protect waste requires spending some money, whose money do you spend?

The trustee's or the trust's?

The beneficiary's money or the trustee's money?

If you buy an insurance policy, does the trustee pay for out of his own pocket or out of trust assets?

Mr. Brauchli: Well, I think in this case the United States was obligated to prevent the deterioration.

All they have to do is repair... they have basketball-sized holes in the roof letting rain in which progressively deteriorates... deteriorates the property.

Justice Stevens: Could the United States have used trust assets to perform that duty?

Mr. Brauchli: I think they should use their own assets since they're using it rent-free, and they should protect the property because they have--

Justice Stevens: You're saying they should use it.

Could they... in your judgment, could the United States have used trust assets to perform that duty?

Mr. Brauchli: --Yes, the United States' assets.

I'm... are you... I'm not--

Justice Stevens: That's not my question.

Mr. Brauchli: --Oh, you mean the trust assets.

You mean the buildings themselves?

I don't... well, they have collected rents--

Justice Souter: Could they cut--

Mr. Brauchli: --for some of the buildings.

Justice Souter: --Could they cut down some trees and say, we're going to sell off some timber because we've got to raise some money to fix the roof?

Would that have been a... a legitimate use of the property?

Mr. Brauchli: Of the tribe's timber?

Justice Souter: Yes.

Mr. Brauchli: I would say they cannot do that without the tribe's permission.

Justice Souter: So it's literally got to come out of a pocket of the National Government which has no relation to the tribe's assets is what you're saying.

Mr. Brauchli: That's what I'm saying.

Justice Breyer: Suppose you... you rent... it's rather interesting.

I mean, suppose... suppose that the trustee... this were an ordinary trust, but the trustee was giving it to a third party to use, which he'd have the right to do under the trust.

And the third party didn't repair the basketball-sized holes in the pavilion.

How do we decide if it's that third party's responsibility, or if trust assets should have been used?

I mean, here I'm thinking that--

Mr. Brauchli: Well--

Justice Breyer: --the trustee is both the trustee and the third party himself because he's using it for his own purposes.

Mr. Brauchli: --Well, under landlord and tenant law, the tenant would certainly be liable for the waste, and this Court said that in the Bostwick case.

Justice Breyer: Would the tenant have to repair the holes in the roof?

Mr. Brauchli: The tenant would be responsible.

Any lease of tribal property by a... a tenant, the... the duty is to the United States as well as the tribe.

And the United States under the leasing regulations has an absolute duty to go in there and protect the... to protect the value of the property... and I put that in my brief... the value of the property from a tenant who's injuring that property.

So here they're saying we're like a tenant, but we can commit all the waste we want to.

Justice Ginsburg: What precisely are you asking for?

You said... you started to say something, and then you were asked a question.

You said you're not asking for wear and tear.

What is the measure of the damages you're--

Mr. Brauchli: I think the measure of damages would be against the measuring stick of a reasonable trustee in like circumstances in total control of the trust corpus of his beneficiary.

And I'm saying it's that amount of damages necessary to bring it up to code, less reasonable wear and tear.

Justice Ginsburg: --So it would be... that... that would be the... 14 million-dollar figure to bring it up to code?

Mr. Brauchli: Well, that was been altered because the tribe has engaged in a little self-help, and we actually took over five... five buildings, and we had a grant from the White House Save America's Treasures and the National Endowment of the Humanities and the State of Arizona, and the tribe put 2 million of their own dollars.

So I think that figure is more like $8 million, and that's--

Justice Ginsburg: But you're still... what you're talking about is what it would cost to bring this up to historic building preservation level?

Mr. Brauchli: --Not necessarily.

Its just a... when you have... not... we're not talking about restoring it.

We're talking about rehabilitating the buildings and you can keep its historic character and make modifications to it.

We're not talking about restoring it and making it into a theme park like the Government suggests.

We're talking about bringing it up to code.

You can make some modifications to it.

The... the standards are... the Secretary's standard says if you're going to have properties listed on the National Register of Historic Properties, you can make modifications, but you have to keep the historic character.

You can upgrade the electricity.

You can repair the roofs.

And actually the code is a lot more lax than the Uniform Building Code.

The--

Justice Stevens: What... what is this code?

Is it a generally applicable code about things like electric wiring and... and sound roofs, or--

Mr. Brauchli: --Well, the Bureau of Indian Affairs usually uses the General Services Administration and the Uniform Building Code or the Uniform Code of Building Conservation.

That's what the National Park Service--

Justice Stevens: --But is that what you--

Mr. Brauchli: --Yes.

Justice Stevens: --Is that what you're referring to--

Mr. Brauchli: Right.

Justice Stevens: --when you say, the code?

Mr. Brauchli: Right.

And their assessment, the BIA's assessment, in 1998 came out within a few hundred thousand dollars of our assessment of the... of the cost to make the repairs which they had deferred maintenance basically for 40 years in some buildings.

Justice Scalia: Mr. Brauchli--

Mr. Brauchli: Yes.

Justice Scalia: --I'm... I'm confused about... about these buildings that... that have basketball-sized holes in the roof.

The Government is still using these buildings?

Mr. Brauchli: No, they have not.

Because of the deferred maintenance, those buildings are boarded up.

Justice Scalia: Well, then they're not using them anymore.

So I mean, you can't argue--

Mr. Brauchli: Right, and that's--

Justice Scalia: --that they have... if they're not using them, you can't say that they're in control of them, and that their being in control requires them to make the repairs.

I mean, it--

Mr. Brauchli: --No.

Justice Scalia: --Under... under the... under the statute, they're not required to use the buildings.

They may use the buildings.

If they're no longer using them, and they have basketball hole... size... sized holes in the roof, it seems to me you have to come up with some theory other than the Government's continuing control which imposes upon the Government the obligation to repair the buildings.

Mr. Brauchli: Let me clarify something.

Justice Scalia: All right.

Mr. Brauchli: The... the buildings... when the need expires, their right to be there expires.

I'm talking about the... the boys' dorm now.

That's the basketball-sized holes in the roofs.

We made a demand.

The tribe made a demand for the return of 15 buildings.

They said, you no longer need them.

Give those buildings back to us.

Your... your right to be there has expired, but you give us the money for the... to repair those because they're not inhabitable.

They used to be.

Our experts... we've spent a lot of money.

We have photographs from 1960.

We know they were in very good shape in 1960.

Justice Scalia: And what did the Government say?

You can't have the buildings, or you can't have the money?

Mr. Brauchli: They said... oh, they... they want to give us the buildings.

Justice Scalia: Okay.

Mr. Brauchli: They said, you can't have the money.

Justice Scalia: Well, that's exactly right, it seems to me, if the only theory on which they're obliged to repair them is that they're in control of them.

They're saying, you know, we're not using them anymore.

We don't want to repair them.

If you want them, they're yours and you can repair them.

Mr. Brauchli: They don't own them, and under Mitchell II, this Court said that when the United States is in control of a... of a resource of a tribe, a... a fiduciary relationship is established in respect to that resource.

Justice Souter: No, but isn't your argument that they... I... I'm not saying whether you win or lose on it, but isn't your argument that they are obliged to give us the money to repair them because the deterioration took place when they were in control?

Mr. Brauchli: Yes.

Justice Souter: Isn't that your point?

Mr. Brauchli: That is my point which I did not apparently express very well, but that is the point that--

Justice Scalia: You mean they... they were still using those buildings when the... when the basketball-sized holes in the roofs appeared?

Mr. Brauchli: --They were using the buildings as the progressive... it's not a Big Bang Theory about a building falling down.

[Laughter]

It's... it's a progressive deterioration of the buildings.

And then when they felt that... they just started to board them up, and... and we said, okay, we'll take... they said... well, actually, they wrote a letter, said they're yours.

And we said, what do you mean they're... they're ours?

With an $8 million repair bill and you had total control, and you feel you have the right to destroy property that you don't own?

And this deprives Congress of the benefit that Congress intended.

So here's the executive branch saying, we don't care what Congress gave you.

We'll make sure you don't get anything except a... a pile of rubble.

And someone has got to pay for that, and the tribe should not pay for that.

And that's the point of the damage claim.

We went to the Secretary and they said... after a year of wasting my time at the solicitor's office, they said... finally, the Special Assistant to the Secretary said, you're going to have to sue us because we're not going to give you the money, and we feel we have the right to destroy this property.

And that's... whether it's demolition by neglect or, as the Department of Justice said in the circuit court below, since you don't have title to this property, contrary to the plain text of the act, we have the right to dynamite it.

And somehow it's been held in some kind of purgatory state where what Congress intended to give to the tribe wasn't really intended to give to the tribe.

It's a... it's a plaything for the BIA to play with and destroy.

And that's not the fiduciary relationship that this Court has been noted for in... in respect to a one-on-one relationship.

In Nevada versus United States, we said, when it's one on one, a fiduciary relationship and there's a fiduciary obligation incumbent upon the United States when it deals with Indian people.

Justice Kennedy: Mr. Brauchli--

--What about--

Justice Stevens: --can I ask this factual question?

I should know, but I really don't.

How long ago did the Government's active use of the buildings cease?

Mr. Brauchli: It is different depending on the building, and that's why we say we have to go building-by-building.

And they have raised the statute of limitations.

They said, your claim is premature, in... in the trial court.

Then, in the circuit court they said, it's... no.

They said it's... you're too late.

You didn't... the statute of limitations will bar your claim.

So that's still lingering out there.

Then, in the... then in the circuit court of appeals they said, it's not in trust, and therefore we can dynamite it.

Then, in their briefs here they say, we control everything and your claim is premature.

So they have shifting defenses.

Different buildings, because they didn't maintain them, they started sloughing off one-by-one because they--

Justice Stevens: Do you have a theory on when their active use of the buildings ceased?

Mr. Brauchli: --It's... it goes... it really does have to go by building-by-building because I would say that--

Justice Stevens: Give me any building.

Was it 10 years ago?

Five years ago?

Mr. Brauchli: --in the last 5, 6.

The last 6 years have been progressive, where they started boarding them up and just stopped--

Justice Stevens: And your theory is that the... the waste occurred before or after they ceased using some... or some of each?

Mr. Brauchli: --It's... it's some of each.

It's a deteriorating use.

We don't ask them to restore pre-1960 condition.

We're saying take the 1960 condition, and the waste you committed from 1960 when it's under your control.

We don't want them to... they don't have to restore it back to its... as they say... Old West shape.

We're just asking it... for the condition that when we got it from Congress, Congress said, here's the gift.

Here is the Fort Apache, but we're going to give the Secretary just a limited use, and when that need expires, then the Secretary has no right because but for that act, the Secretary can't even set foot on that property.

It's trespass.

Justice Souter: Well, is it... let... may I also get clear on something that I... I thought I was clear on but I'm not.

Is it your theory that they are responsible for the waste or damage or deterioration that took place up to the point at which they ceased actively to use it, or up to the point at which they relinquished control over it to you?

Because I take it those... for some buildings... will be different... different dates.

Mr. Brauchli: Yes.

There's... they maintain that they relinquished some buildings and therefore it's barred by the statute of limitations.

Justice Souter: No.

But what is your theory?

Is it that their responsibility is measured by the date at which they ceased to use, or the date at which they relinquished control to you?

Mr. Brauchli: It was the date when they relinquished control and we accepted it because we refused to accept them without the money to repair them.

Justice Souter: Okay.

Mr. Brauchli: And they're--

Justice Souter: So you're saying during part of the period in which the... the property was just boarded up, their responsibility was still in effect.

Mr. Brauchli: --Yes, because they still kept them on their facility inventory maintenance list, but they didn't get... they get the maintenance money and they use it for other things other than the--

Unknown Speaker: Suppose in... suppose in 1960 the Government said, here are the buildings.

Justice Kennedy: We don't want them.

And you said, well, you know, it's... it's going to cost us a lot of money to keep up these buildings.

You're going to have to pay for that.

We can't do that.

Could the Government then say, well, we have a stand-off, we'll destroy them?

Mr. Brauchli: --Are you talking about after March 18th, or before--

Justice Kennedy: This is after the 1960 act was enacted and they had become the trustee.

Mr. Brauchli: --If they never physically occupied those buildings or they stopped using them, it's not their liability.

If they walked away from the property in... on March 18th, 1960, they said, Hey, Congress just gave this to you.

We've been using them but we're going to walk away today.

No responsibility.

None.

Because when they were the owner, they can do whatever they want.

When the tribe becomes the owner and they... they take control of the trust corpus, then there's an obligation, the most fundamental, rudimentary, crude fiduciary duty as to--

Justice Kennedy: Can... can the Government terminate this trust anytime it wants?

Mr. Brauchli: --Pardon?

Justice Kennedy: Can the Government terminate this trust anytime it wants by executive order?

Mr. Brauchli: No, it cannot because the executive branch does not have the power to terminate this reservation.

Only Congress can.

Justice Kennedy: That's... that's what I thought.

The trust remains in effect at all times.

Mr. Brauchli: But it's... it'd be only a bare trust, Your... Your Honor, because if... once they... once they relinquish the control and the need is not there, their liability ends.

You know, we have taken over the cook's cabin.

We've taken over four buildings.

Their liability is going to end there because we took them over.

We had to use some self-help.

Unknown Speaker: What... what of the Government's argument that this was really an illusory trust?

Justice Ginsburg: That is, the statute, the 1960 statute, gave the Government the right to use this for... for school and administrative purposes as long as they wanted to.

So at... looking at it from 1960, that could be forever.

They might have wanted to use it as a school forever, and then the tribe would have nothing.

Mr. Brauchli: Well, the... to answer that question, Your Honor, the measure of damages always could be measured against a reasonable trustee.

If they kept using for 100 years, then of course, there's going to be normal... you know, even normal wear and tear, but there's still... that's something for the trial court to sort out as to the measure of damages.

I mean, what is reasonable... what is reasonable to repair, what is reasonable not to under the circumstances.

That's... that's a question for the trier of fact as to the measure of damages.

But, you know, the reality of the situation is that the need has expired except for about 10 buildings.

In this... I mentioned the Bostwick case because in the Bostwick case, the United States had open, free use... unrestricted use of a private home, and they... they committed waste.

And there was... and this Court... Court... they were sued.

The United States was sued and the Court said that there's an implied covenant against waste even those the lease is silent as to that duty.

And I think the analogy is here in the trust situation.

When... when... it doesn't matter if the statute doesn't say you have to repair buildings when you're using them.

It would be unnatural for a statute to say so.

That's all I have, Your Honor.

Justice Stevens: Thank you, Mr. Brauchli.

Mr. Garre, you have 1 minute left.

Rebuttal of Gregory G. Garre

Mr. Garre: Thank you, Justice Stevens.

May it please the Court:

The Government is not using the property, and is not required to use the property for the benefit of the tribe as the court of appeals acknowledged at page 14a of the appendix to the petition.

It's using the property for its own Government purposes, and in that respect, this case is completely unlike Mitchell II, where the statutes and regulations specifically required the Government to manage the property as an economic resource for the Indians.

There are no trust assets to pay for any historic restoration efforts because Congress directed that the property would be used for Government purposes, not for any... any kind of economic purposes that would generate assets.

Congress has a separate regime for historic preservation.

It grants millions of dollars each year for historic preservation projects, and as Mr. Brauchli alluded, Congress has granted funds for historic reservation at Fort Apache.

The tribe has engaged in its own historic preservation efforts there with millions of dollars of private, State, and Federal funding, and the Department of the Interior has put millions of dollars of its own maintenance and repair efforts into the fort.

Thank you very much.

Justice Stevens: Thank you, Mr. Garre.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 01-1067, United States versus White Mt. Apache Tribe will be announced by Justice Souter.

Argument of Justice Souter

Mr. Souter: This case comes to us on writ of certiorari to the Court of Appeals for the Federal Circuit.

A 1960 statute declared that the former Fort Apache Military Reservation was 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 in improvements.

The Secretary has exercised this right with respect to about 30 of the post buildings and appurtenances.

In 1993, the Tribe commissioned in assessment of the property resulting in a finding that it was in need of rehabilitation expected to cost about $14 million.

This is the amount that Tribe sought when it subsequently sued the United States citing the terms of the 1960 Act and alleging that the United States had breached its fiduciary duty to maintain, protect, repair, and preserve the trust property.

In response, the Government acknowledge that the under the Indian Tucker Act, it was subject to the jurisdiction of the Court of Federal Claims with respect to certain tribal claims.

But the Government stressed that the waiver of sovereign immunity operated only when underlying substantive law could be fairly be read as giving rise to a particular duty breach of which should be compensable in money damages.

Here the Government argued, no statute or regulation not even the 1960 Act could fairly be read to impose a legal obligation to maintain the property, let alone authorized compensation for breach.

The Court of Federal Claims agreed and dismissed the complaint.

The Federal Circuit reversed and remanded on the understanding that in light of the 1960 Act, the Government’s use of the property triggered a common-law trustee’s duty to act reasonably to preserve the property.

An obligation fairly interpreted as supporting a money damages claim.

We now affirm.

As the Government has argued, and as Justice Ginsburg explained a moment ago, the Indian Tucker Act gives the Court of Federal Claims lurisdiction over tribal claims but it creates no substantiate right enforceable against the Government by way of a claim from money damages.

The statute creates a right capable of supporting such a claim only if it can fairly be interpreted as mandating compensation by the Government for damage sustained.

The Act at issue in this case does permit a fair inference that the Government is subject to duties as a trustee and potential liability and damages for breach.

The statute expressly defines fiduciary relationship in providing that Fort Apache be held by the Government in trust for the Tribe, and it invest the United States with discretionary authority to use portions of the trust corpus.

Under the terms of this provision, the United States has enjoyed daily occupation of the trust corpus and so has obtained controlled over the property.

Although the 1960 Act does not expressly subject the Government to conservation duties, the fact that the property occupied by the United states is expressly subject to a trust supports a fair inference that an obligation to preserve the property improvements was incumbent on the Government as trustee.

The Court of Federal Claims does has jurisdiction to determine whether the Government should be liable in damages for breach.

Justice Thomas has filed a dissenting opinion in which the Chief Justice, Justice Scalia, and Justice Kennedy join.