White Mountain Apache Tribe v. United States

“a com- present has failed Kuzmak’s Dr. jurisdic- exercise case”

pelling unreasonable.

tion would other parties’ considered have

We they either are find that

arguments resolution unnecessary for

unpersuasive Hence, the district because appeal. Dr. Kuz- concluding erred

court letter infringement an sending act of

mak’s negotia- in the and his efforts Inamed agreement license their leading to

tions satisfy the contacts not sufficient

were process, due requirements

constitutional person- lack of its dismissal

we reverse pro- further and remand jurisdiction

al opinion. with this

ceedings consistent and REMANDED.

REVERSED TRIBE, APACHE MOUNTAIN

WHITE

Plaintiff-Appellant,

v. STATES, Defendant-Appellee.

UNITED

No. 00-5044. Appeals, Court Circuit.

Federal 16, 2001. May

DECIDED:

“Tribe”)1 so that the Tribe can maintain a suit for damages in the Court of Federal does, Claims. We hold that it though the obligation created is narrower than that claimed the Tribe. We accordingly re verse and remand the decision of the Court of Federal Claims in White Moun Apache tain Tribe v. United (1999), Fed. Cl. 20 for further proceedings consistent with this opinion. FACTUAL BACKGROUND Brauchli,

Robert C. Brauchli, Brauchli & P.C., Tucson, AZ, argued plaintiff- Army estab- appellant. a military post lished known as “Fort on Apache” 7,500 approximately acres of Peterson,

Elizabeth Ann Attorney, Ap- within land the borders of what later be- Section, pellate Environment & Natural came the White Mountain Apache Division, Tribe’s Resources Department Justice, reservation in Arizona.2 The DC, Army oper- of Washington, argued for defendant- Apache ated Fort appellee. military as a post With her on until brief was Lois Schiffer, Congress J. when Assistant Attorney General. transferred control of the Fort to the Secretary of the Interi- MAYER, Before Judge, Chief MICHEL or, designated approximately 400 DYK, and Circuit Judges. of acres the Fort for use as a boarding school for Native American children to Opinion for the court by filed Circuit fulfill unspecified certain treaty obligations Judge DYK. Dissenting Opinion by filed of the United § States. See 25 U.S.C. 277 Chief Judge MAYER. (1994).3 DECISION 1960, In Congress the passed 1960 Act DYK, Circuit Judge. which declared the Fort to by be “held the United States trust for the White Moun- presents This case question the of Tribe, Apache subject tain to right whether a the of 1960 Act of Congress, Pub.L. 86-392, (1960) Secretary the (the No. 74 of the Interior to use any Stat. 8 “1960 Act”), part obligates of the land improvements the United States to main- and for tain or restore certain and administrative or purposes build- school for as ings held the United States in long they trust for as are needed for purpose.” that (the the Mountain Apache White 86-392, (1960). Tribe Pub.L. No. 74 Stat. 8 Pur- 1. federally recognized The Tribe is a Native Apache maintain the military former Fort organized American tribe under section 16 of post boarding as an Indian school for the 1934, Reorganization the Indian Act of purpose carrying of treaty obligations, out to 984, § Stat. 25 U.S.C. 476. be known as the Theodore Roosevelt Indian Provided, School: Apache the That Fort mili- 2. The Tribe's reservation was established tary post, thereto, appurtenant and land shall Congress an Act of on June 1897. 30 Stat. possession remain in the custody and of the Secretary of the long they so Interior as shall provided required statute That Secretary purposes.” ”[t]he that Indian school of the Interior is to § authorized establish and U.S.C. 277. Affairs of Indian the Bureau rior and statute, al- government the that to suant property. and restore ability to use maintain and has

legedly controls a “mas- adopted Tribe on the of buildings May thirty-five approximately found, and resto- preservation Claims for the plan” Federal ter Court site. The that a small dispute, In November not do of the Fort. parties ration and enrolled currently are an assessment of students commissioned number the Tribe of the school, “the future cost esti- and obtained and in the is apparently institution as a viable preservation school and repair mates Apache Mountain White under review.” as report, to that According buildings. According 22 n. 2. Tribe, at Fed. Cl. to rehabilitate cost the total has offered government parties, approximately $14 amounted buildings unspeci- an trusteeship over its terminate responds The dollars. million trans- and to buildings of the number fied restored and maintained it has indeed The Tribe. to the them fer control ac- buildings, but thirty-five of the some accept however, has refused dilapidated.5 are others knowledges that re- and until unless offer Tribe com- March On record does buildings. The habilitates in the action a breach menced has whether the not reveal mil- seeking $14 of Federal Claims Court to the buildings of the any turned over govern- damages for dollars lion Tribe. duty of “its alleged breach ment’s govern- in this appeal At issue preserve and maintain, repair protect, to maintain trustee obligation ment’s Tribe al- corpus.” The Tribe’s trust include, buildings, which those restore and the 1960 claim arose under its leged by the alia, constructed barracks inter (codified at Snyder Act, Act as well as the the Native American Army, United States 13), Historic the National 25 U.S.C. dormitories, student school boarding (codified of 1966 Act Preservation con- buildings administrative and various variety of other and a seq.) et U.S.C. Interi- Department structed regulations. statutes federal or. a to dis- filed motion government The Tribe, government the According to the which upon a state claim for failure to miss and control exclusive access has had lack of sub- and for may granted be relief many has allowed buildings and over those motion, In that jurisdiction. matter ject Tribe disrepair. The fall into of them to the neither argued that government the not dis- does government the alleges, and Act, statutes and any of the other nor Interior Department the pute, that Tribe, imposed an the cited regulations several demolished and has condemned maintain on United States obligation Tribe The unsafe. to be buildings deemed in trust for buildings held or restore repeatedly requested, it has that contends Tribe, had not that the Tribe and Inte- avail, Secretary of the no 1976, the National Park in 5. We note that phrase “mas- does not 4. The define Tribe a designated Fort as National merely pro- complaint plan.” Service ter vides, The Tribe's 1993, 1997, Site, “the September pertinent part, that that in and Historic intervene and save placed its intent the Fort on Tribe declared Watch Monuments World adopted a property and imperiled its trust Endangered Mon- 100 Most “1998 List of maintain, protect, preserve, Tribe, Master Plan Apache Mountain White uments.” restore said repair, rehabilitate and Cl. at Fed. as a District cultural within the Historic the Tribe.” resource for economic stated a cognizable claim for dam- money deterioration of the property under a “per- ages for government’s alleged misman- missive waste” theory, by analogy to prop- agement of that trust property. In addi- (Under erty law. this theory, as articulat- tion, government contended that Tribe, ed by the States, as the claim, Tribe’s breach of trust even if other- current tenant of the trust property, would valid, wise accrued outside the six-year required be to take reasonable steps to statute of period limitations governing prevent deterioration of the claims brought against the United States anticipation Tribe.) of its transfer to the §§ under 28 U.S.C. 1491 and 1505. The court disagreed, noting “the diffi- The Court of Federal agreed Claims culty with plaintiffs argument is that an with the Tribe had for permissive action waste, even if proper, prove failed to the existence of a does not ordinarily give rise to a money obligation on part of the United States claim.” Id. at 28. Referencing a second- would, breached, if give rise to a claim ary source that 188, summarized sections for money damages, and dismissed the (First) of the Restatement complaint for failure to state a claim. In (1936), Property the court observed that decision, reaching that the court relied on law on ‘permissive “[t]he waste’ provides two Supreme Court which cases establish the appropriate remedy for permis- the principles governing breach of trust sive waste is an generally injunction,” an claims Native Americans against equitable remedy that the Court of Feder- Mitchell, United States v. al jurisdiction Claims lacks to award. Id. 535, 445 U.S. 100 S.Ct. 63 L.Ed.2d But Bobula v. United States Dep’t cf. (1980) (‘‘Mitchell ”), I and United Justice, (Fed.Cir.1992) 970 F.2d Mitchell, States v. 103 S.Ct. (noting that equitable relief sometimes (1983) (“Mitchell 77 L.Ed.2d 580 available in a suit brought under the Tuck- II”).6 The Court of Federal found Claims Act, er 28 U.S.C. when that relief that the language of 1960 Act “creates “is incidental to and limited, collateral to a claim or bare relationship be- money damages”). short, tween the Tribe,” the court and the akin to the concluded that it relationship jurisdiction lacked created over General Allotment Act of the Tribe’s claim 24 Stat. and accordingly dis- codified 25 U.S.C. missed the seq., et action for failure to state which was found in Mitchell I not to im- upon claim which may granted. relief pose fiduciary duties on the United States. The court did not reach government’s White Apache Mountain 46 Fed. Cl. statute argument. limitations This at 26. The court further noted that unlike timely appeal followed. the and regulations statutes found to cre- ate II, fiduciary duties in Mitchell the 1960 DISCUSSION Act “does not direct the I manage the Fort Apache site for the bene- fit of the Tribe.” Id. at 26. question The before us is whether the Court of Federal rejected

The Claims erred in court also dis argu- Tribe’s that, missing ment this if breach of even claim against had no fiduciary obligation United maintain the States for failure to a proper- state ty for the benefit of the claim upon govern- may which relief granted. be ment was liable for its failure to prevent We review that decision without deference. 6. The Mitchell cases are discussed in detail in part opinion, XVof this infra.

1372 by the Federal Government compensation Plan & Corp. Pension First Hartford II, 1279, Mitchell damages sustained.” for the 194 F.3d United Trust v. (quoting 2961 103 S.Ct. jurisdic- at (Fed.Cir.1999). have We U.S. 1286-87 Testan, 424 U.S. to 28 U.S.C. v. pursuant States appeal United tion over (1976)). 1295(a)(3) 47 L.Ed.2d § 96 S.Ct. II Ill the Court Act gives The Tucker and Federal Claims of the Court Before broad over jurisdiction Claims of Federal a that argued Tribe appeal, the on this the United against of claims categories other regulations, and variety of statutes of sover a waiver and constitutes States Act, fiduciary obli- impose than the claims. as to those immunity eign dis-We States. II, (1994); gations upon 463 U.S. United Mitchell § 1491 U.S.C. companion stat agree. A 103 S.Ct. at Act, confers ute, Tucker further Indian gener governs Act Snyder The of Federal the Court on

jurisdiction Indian of the Bureau of appropriations al a brought by any claim hear Claims (“BIA”). pertinent It provides, Affairs the United against tribe American Native direct, supervise, BIA “shall that part, would which otherwise “is one States may Congress such monies and expend of Federal the Court cognizable for the appropriate, from time time not an Indian were if the claimant Claims the Indians benefit, care, of and assistance Although the § 1505. U.S.C. tribe.” 28 fol for the States the United throughout the Court jurisdiction in premised Tribe assis statutes, ... For industrial it is lowing purposes: upon both Federal Claims ad jurisdiction general and advancement confers tance and primarily ... For property. ministration Indian this action. over extension, improvement, enlargement, However, it is axiomatic grounds buildings and repair merely jurisdiction are two statutes these 25 U.S.C. projects.” plants existing right “any create substantive al and do not added). with agree We (emphases § 13 States for against enforceable this stat of Federal Claims the Court II, at 463 U.S. Mitchell money damages.” money- a basis for provide “to ute fails (discussing Tucker 103 S.Ct. in Mitchell laid out mandating claim as I, 100 S.Ct. Act); 445 U.S. Mitchell Tribe, 46 Apache Mountain II.” White (“It § 1505 no that 28 U.S.C. follows Indeed, Vigil, v. Lincoln at 26. Fed. Cl. right against confers a substantive more 2024, 124 182, 194, 113 S.Ct. money dam to recover (1993), Supreme Court L.Ed.2d 1491.”). Thus, than does 28 U.S.C. ages Sny “general terms” held that claim, Tribe must in order state gen require expenditure do not der Act law, such as source of to some other point specific programs on eral appropriations Constitution, Congress any or Act “the Americans. of Native classes particular depart of an executive any regulation 931, Andrus, 934 667 F.2d v. Vigil See also on the obligation an imposes ment” Cir.1982) (10th language (holding preserve repair and States to United a conclu support “too broad isAct 28 property. U.S.C. trust Tribe’s appropri expressly has Congress sion that 1491(a)(1). also demon Tribe § The must all Indian school lunches for ated funds upon relied that the law strate source children”). mandating interpreted as fairly be “can

1373 While other regula sustained,” statutes or II, 216-17, 463 Mitchell U.S. at tions relied on may impose 2961, Tribe 103 S.Ct. to the trust property. obligations on federal agencies, none of Accordingly, we turn our attention to these statutes regulations or fidu imposes the 1960Act. ciary obligations that would lead to a claim for money damages. See National IV Historic (“NHPA”), Act Preservation 16 earlier, As noted the 1960 Act provides, § seq. U.S.C. 470 et (requiring federal in pertinent part, that certain lands and agencies to manage and maintain historic improvements thereon shall “be held control); properties under their the His States trust for the White Sites, toric Buildings, Objects, Antiq and Mountain Apache subject to the 1935, 462(f) (re uities Act § 16 U.S.C. right the Secretary of the Interior to quiring Secretary Interior, inter use” the property “for administrative or alia, “[r]estore, reconstruct, rehabili school purposes.” 86-392, Pub.L. No. 74 tate, preserve and maintain” any historic (1960). Stat. prehistoric buildings or property); Title Both the Tribe and the United XI of the Education Amendments Act of their agree briefs that the 1960 1978, 25 § U.S.C. 2005 (requiring the Sec Act creates a “trust.”7 The statute itself retary of the Interior bring schools, “all states that the land and “improvements dormitories, and other operated facilities” thereon” are held “in trust” for the Tribe. by the Bureau of Indian Affairs “into com Moreover, it is well-established com with pliance Federal, all applicable tribal, law mon trust arises when three elements or State health safety standards”); present, are namely, trustee, a beneficia the Improving America’s Schools Act of ry, and a corpus. (Sec trust Restatement 32.4(s)(2) § C.F.R. (requiring fed ond) (1959); Trusts 2 cmt. h see also “[mjaintain eral all school II, Mitchell 463 U.S. at 103 S.Ct. and residential facilities to appropri meet 2961; Cheyenne-Arapaho Tribes v. United Tribal, ate State or Federal safety, health (10th Cir.1992) 966 F.2d standards”); child care 25 U.S.C. (listing trust), elements of common-law § 177 (precluding conveyance of Native denied, cert. U.S. 113 S.Ct. American lands without United ap States’ L.Ed.2d case, In this all of proval); the American Indian Trust Fund necessary elements of a common-law Management Act of 25 U.S.C. (the present: trust are a trustee 4043(c)(5)(C)(ii) (requiring Special Trust States), (the Tribe) a beneficiary and a ee for Native certify Americans to (the corpus land and held in buildings Department of the Interior’s budget re trust). quests to Congress are adequate to “dis charge, effectively and efficiently, However, the Sec the mere fact that the retary’s responsibilities” to Native Act creates a trust relationship does Americans). Thus we find that none of inquiry. not end the We must deter also these regulations statutes or fairly “can be mine whether a fiduciary there is obli interpreted mandating compensation by gation created the 1960 Act or merely a the Federal Government for damages II, “bare trust.” Mitchell at U.S. Inexplicably, argument govern- oral passed to the Tribe. But for the reasons ment position by text, reversed arguing its that a stated we find that the 1960 Act beneficial in the yet interest had not creates a “trust.”

1374 resources of timber mismanagement ment fiduciary no If there is 2961.

103 S.Ct. than” other in some source found mon- must be claim for is no there then obligation, 546, 100 Id. at Act. of that Allotment breach the General alleged for damages ey noted that The Court 1349. S.Ct. obligation. re consider the did Claims not “Court of I, Supreme Court In Mitchell that other assertion [allottees’] spondents’ regulations and statutes held that federal lia the United States ... render statutes relation trust a “limited only that create mismanage damages for money ble and Na States the United ship” between 7, case,” n. id. at 546 in this alleged ment fiducia impose do not tribes tive American remanded 1349, accordingly and 100 S.Ct. for to claims rise give that obligations ry of these alterna for consideration the case at damages. money States’ for the United statutory bases tive in that at issue The statute 1349. S.Ct. 546, 100 1349. at S.Ct. liability. Id. Act of 1887 case, Allotment the General remand, found seq.), pro of Claims (codified et the Court On at 25 U.S.C. upon by the United the allot- part relied pertinent vided statutes thus allotted the land Allotment “hold was to than States tees other General benefit of use and for the sole the fed responsibility ... in trust on conferring Act— shall allotment whom such the Indian to management for timber eral U.S. have been made.” lands, roadbuilding and Indian on statute, indi Relying on S.Ct. lands, those right-of-way over granting of sued the allottees American vidual Native a management8 and fund trust —created of its breach alleged States United ground sufficient relationship trust manage certain fiduciary duty properly the Tuck money damages under claim for (located on the reserva resources timber States, Ct. v. er Act. Mitchell tion) income. One production of for the (en (Ct.Cl.1981) F.2d Cl. courts, the Court of predecessor our banc). accordingly The Court Claims Claims, States’ motion the United denied motion to dismiss government’s denied the action, reasoning dismiss the the action. created a language of statute plain II, Supreme Court Mitchell against duty enforceable general stat- properly had agreed that allottees of a claim for by means the United States against the United States ed a claim dis Supreme Court money damages. The trust, that: reasoning breach language holding that the agreed, I], recognized this Court In [Mitchell light of the statute, understood when Act creates Allotment that the General only a “created limited history, legislative the United relationship between relationship between conclud- but Indian allottees States and not im that does allottee relationship was limit- ed that the Government any duty upon pose to the bare trust In contrast ed.... Id. at manage resources.” timber Act, Allotment by the General created concluded 1349. The Court S.Ct. regulations now the statutes respondents [allottees] “[a]ny right before Government clearly give us Federal for Govern- money damages recover alia, American involved, trust for Native trusts funds held in timber inter 8. Those statutes (25 162a). (25 v. United lands Mitchell management Native on American U.S.C. 406, 407, (Ct.Cl. 466), roadbuilding §§ on and U.S.C. 269-274 664 F.2d 229 Ct.Cl. (25 U.S.C. rights-of-way banc). those 1981) (en over lands 318, 323-325), §§ and the administration

1375 responsibility manage Indian re- 50 (Fed.Cir.1995) F.3d 998 (holding full sources land that certain federal statutes providing benefit of They thereby Indians. establish a fidu- the payment of interest on tribal trust ciary relationship and define the con- funds held by States, “in con- tours of the United fiduciary States’ re- junction with the government’s fiduciary sponsibilities. duty to Native tribes, American give the II, Mitchell at U.S. 103 S.Ct. 1261 plaintiffs a substantive right to damages, added). (emphasis In reaching this con- including interest” for breach of that duty) clusion, (with the Court first noted regard (citing II, Mitchell 224-26, U.S. statutes) to the management timber 2961). S.Ct. “[v]irtually every stage of the process is control,” appeal, On this under federal the government and that urges “[t]he De- partment cases, [of the Mitchell Interior] exercises com- read together, im- parable grants control over pose rights-of- fiduciary obligation only when the way on Indian lands in held trust.” Id. at pertinent statute or other authorizing doc- 222-23, 103 S.Ct. 2961. The Court further ument creating the trust relationship also observed that language “[t]he of these directs the United States to manage the statutory and regulatory provisions direct- corpus trust for the benefit of the benefi- ly supports the existence of a fiduciary ciaries, i.e., the Native Americans. It is relationship.” Id. at 103 S.Ct. 2961. undisputed that the 1960 Act contains no The Supreme Court provided has not such requirement, and ac- guidance further in this area since the cordingly argues that the statute cannot II, 1983 decision in Mitchell though a serve as a basis for the imposition fidu- number of decisions, lower court including ciary obligations on the United States. court, decisions of this have applied the We agree. do not holdings of the in Mitchell cases other statutory sure, To II, contexts. For Mitchell example, in which Paw found a States, v. (Fed.Cir.1987), nee fiduciary obligation, F.2d 187 involved a situation denied, t. 108 where the government only not cer controlled (1988), S.Ct. 100 L.Ed.2d 602 but corpus, had an obligation also court concluded that the Indian Long to manage it for the benefit of the Indians. Act, Term Leasing 25 U.S.C. But language of Mitchell II makes Federal Oil and Gas Royalty Manage quite clear that control alone is sufficient Act, 1701-1757, §§ ment 30 U.S.C. “give to create a fiduciary relationship. The powers elaborate with respect Interior Supreme in Court emphasized case to” oil and gas leases on mineral lands that: held trust for the Native Americans. [W]here Federal Government takes Id. II, at 190. Relying on Mitchell we ac on or has control or supervision over cordingly held those imposed statutes tribal or properties, monies the fiduciary fiduciary obligations on the United States. relationship normally respect exists with Id.; see States, also Brown v. United (unless to such monies or properties (Fed.Cir.1996) F.3d (concluding Congress provided otherwise) has even “the commercial leasing regime creat though nothing is expressly ed for said [Native American] lands 415(a) authorizing (or or underlying U.S.C. and 25 part C.F.R. statute general document) other imposes fiduciary duties fundamental on about fund, in its with the dealings Indian or a trust con- allottee-lessors”); Short v. United nection.

1376 fiduciary obligation in a to create pervasive 225, 2961 II, 103 S.Ct. at Mitchell Id. 1558. at States.” v. Unit the United Indians Navajo Tribe (quoting 987 F.2d States, 224 Ct.Cl. ed ar the States appeal, On United added). (Ct.Cl.1980))(emphasis II, fiduciary “lia that under Mitchell gued F.3d v. United In Brown when the into existence only comes bility alone control (Fed.Cir.1996), we held that land at manages the actively fiduciary rela- a establish was sufficient reasoning disagreed, that: We issue.” Id. case, in Na- In that tionship there. contends, that correctly, quite Brown allottees, the pursuant American tive in the instant case court erred the trial by 25 them extended leasing power test for a more restrictive by imposing land 415,9 their collectively leased U.S.C. fiduciary duty than the existence In course. golf commercial for use as II. Mitchell The Su by was established Affairs, acting Indian Bureau of the “control qualify not or did preme Court 162.14,10 determined C.F.R. under 25 as “sig modifiers such with supervision” the lease had breached lessee that the nificant,” “pervasive,” “comprehensive,” precluded that this breach agreement any the Court Nor did “elaborate.” or option to exercising an from the lessee assumption that suggest the where lease. renew the alone was supervision or control either of trust brought a breach allottees The an enforceable rise to give insufficient in the States against action duty. fiduciary money dam- for of Federal Claims Court that determined at We therefore Id. 1561. government’s refusal arising from the ages govern- test whether proper “[t]he to renew lease. the lessee to allow fiduciary duties assumed ment has to dismiss granted a motion The court lands is of allotted thus leasing commercial subject mat- for lack whether,” statutes pertinent under that section 415 concluding jurisdiction, ter Secretary [of “the regulations, and/or “cannot regulations corresponding and the allottees, Interior], rather than the has pay- to mandate fairly interpreted be leasing pro- supervision over control or there- compensation for breaches ment of gram.” Id.11 Brown, reaching 86 F.3d 1557. of.” case, autho- 1960 Act present In the conclusion, noted that the trial court to use Tribe’s rizes the Indian over government’s “control purposes. governmental applicable legal by the lands authorized (1960) (creat- 86-392, 74 Stat. Pub.L. No. elaborate or sufficiently provisions is not empow- part, regulation, pertinent That pertinent provided, in section 415 9.In 10. lands, Secretary of the to terminate ered the Interior ”[a]ny Indian part, restricted ”[u]pon a under section a lease made owned, may individually tribally or whether Secretary showing satisfactory to the owners, with the by the Indian leased the lease or been a violation of there has Interior, Secretary approval of the regulations part.” in this recreational, educational, religious, public, purposes ... and all or business residential note, however, even where the We 11. made under such renewals shall be leases and supervi- nor neither government has control prescribed regulations may be terms and may have certain it sion of trust The Secretary of the statute Interior.” See, e.g., v. Pueblo obligations. Lane portion of in 1970 and was amended Rosa, U.S. 39 S.Ct. Santa (a) of may now be found in subsection statute (1919) (holding that United States L.Ed. 504 current currently section occu- alienate trust lands could not Americans). pied Native “subject to the ing right of the Secre we think the federal government tary of the Interior to any part use does owe a fiduciary duty. Where such land and improvements for administrative absent, use control was the govern- ”). purposes.... that, school think We ment owes no such duty. On remand the to the extent government the has Court of Federal Claims must determine actively any part used the of Tribe’s trust which portions of the trust property were property, and has done so in a manner under exclusive United States control and where its control over buildings it oc subject thus the of a fiduciary obligation.12 exclusive, is cupies essentially portions of the property that have been so used can V longer no be classified as being held in We must next determine whether merely a “bare trust” under Mitchell I. complaint here states claim enforce Rather, government’s decision to use in a present able suit money for damages such trust property for its purposes own respect with to the property controlled a responsibility carries to act as a fiducia the United States. It undisputed ry. Although neither 1960 Act any nor the 1960 Act does not explicitly define the pertinent regulation sets forth clear guide government’s obligations. Once we have lines as to how government must man determined that a fiduciary obligation ex age the property, we think it is rea ists virtue of the governing statute or sonable to infer that government’s use regulations, it is well established that we any part of of the requires the then look to trusts, the common law of government to act in accordance with the particularly as reflected the Restate trustee, duties of a common law as is dis (Second) Trusts, ment for assistance in of in greater cussed detail below. See Re defining the nature of obligation. For (Second) statement Trusts 176 cmt. b II, example, in Mitchell the Court relied (1959) (“It is duty of the trustee to use (Second) upon the Restatement Trusts reasonable care protect the trust prop and secondary authorities to inform its erty from damage.”). loss or Such a duty discussion of the remedies available to apply only would as to specific parcels beneficiaries for a trustee’s breach of its that the federal govern obligations. II, 226, Mitchell 463 U.S. at controlled, ment has used and possibly and S.Ct. 103 2961. This approach by grounds immediately surrounding such Court follows parcels. on several decisions in breach of trust brought cases by Native The record this case is unclear as to Americans that similarly upon relied government’s the extent of the control and Restatement or secondary authorities on of the many use buildings grounds the common law of For example, trusts. comprising Fort Apache. The Tribe alleg- States, Seminole Nation v. United 316 es in complaint its it “has not had 286, 296, U.S. 62 S.Ct. 86 L.Ed. 1480 control over the buildings Tribe’s and im- (1942), the Court used, approval cited with provements occupied, controlled, su- (First) pervised Restatement adju Trusts when managed by [the United dicating a for breach States] Federal of trust claim brought adminis- trative and purposes.” against school To the United ex- Native has, tent that the federal in- American tribe. See also United States v. deed, buildings Mason, used to the exclusion 391, 398, 412 U.S. 93 S.Ct. any If of the buildings was constructed government's obligation respect with to those after creation of the trust in buildings may quite different. omitted). (internal citations at 1385 (1973) secondary Id. on (relying

L.Ed.2d Community v. Indian also Coast v. Klamath See Interior Dep’t authority); Ass’n, F.2d — U.S. 213 Ct.Cl. Protective Users Water curiam) (Ct.Cl.1977) 1060, 1068, (adopt (per -, -, 121 S.Ct. (U.S.2001) the Re which awarded (citing to court’s decision ing trial L.Ed.2d 87 Trusts); (Second) Kol Americans Native damages to individual statement cf. Ass’n, of its Dental breach government’s stad v. American pru 144 L.Ed.2d care and 526, 538, due 119 S.Ct. “to exercise obligation (1999) (looking property”); to Restatements preserve dence cf. Romer, in inter guidance v. Agency Torts and Dist. RE-82 Branson Sch. statute). Cir.1998) (10th 619, (noting federal preting F.3d a obligates trust law of trusts the common law of the common Under trust preserve to steps “take ee to a trustee has trusts, indisputable it is loss, or diminution damage from property reasonably to act duty to an affirmative 1068, denied, value”), U.S. cert. in Re property. As the trust preserve (1999); v. Pelt 143 L.Ed.2d S.Ct. clear, trustee is “[t]he makes statement (10th Utah, F.3d 1542-44 Cir. beneficiary to use to the duty under 1996) in part applica on (concluding, based preserve the to care and skill reasonable (Sec 2 of the Restatement tion of section (Second) Restatement property.” trust of ond) (1959), that individual Na Tmsts (b) to § 176 Comment Trusts an oil and tive Americans beneficiaries obligation clear that this makes provision properly had stated royalty trust fund gas prop of the trust protection extends to the arising from Utah’s a breach of trust claim duty damage: “It is the erty from loss fund). mismanagement of alleged to care trustee to use reasonable of the support the secondary authorities Other loss or property from protect trust affir- has an that the trustee proposition damage.” reasonably preserve to duty to act mative Tribe Hopi Masayesva In ex rel. Indian Bogert As Professor property. trust (9th Cir.1997), 1371, 1385 Hale, 118 F.3d v. has noted: denied, 1114, 118 S.Ct. cert. duty protect to has a The trustee (1998), Hopi Tribe 140 L.Ed.2d de- against damage or property trust against, action a breach of trust brought obligated to the benefi- He is struction. alia, to recover the United inter necessary for do all ciary to acts another overgrazing, by damages for the trust res which preservation cattle, in of land held trust tribe’s reasonably by a performed would While af for both tribes. United States his own like employing man prudent judgment of no court’s firming the district to purposes similar those Circuit noted liability, the Ninth trust. applied have appeared to district court applied a “rea because it wrong standard The Law Trusts and George Bogert, G. (2d ed.1980). a “reasonable Trustees, rather than person” § sonable See F. trustee” 2A & William standard: Austin W. Scott also Fratcher, § at 482 The Law Trusts liability predi- is government’s Since the 1987) (“It (4th duty of is the ed. need take obligations, it cated on trust preserve care skill to use a reason- trustee measures that protective those of care The standard property. take. Re- trustee would prudent able or duty, to this Trusts, applicable which is statement, (Second) § and skill duties, as it is to his other person preserve is of a man protect the estate ordinary prudence.”) ¶ [hereinafter Scott 640[3], for future interests.” 8 id. at 56- Fratcher], & 22. That “care of a person” reasonable accordingly requires a tenant to “keep the Here we that general believe premises in the condition it inwas when principles obligate of trust law tenancy began, general wear and tear skill,” States “to use reasonable care and ¶ 640[3], (Second) excepted.” 8 id. at 56-25. Restatement Trusts “preserve loss, from short, the government here damage or diminution value.” Branson has a obligation to act reasonably RE-82, Sch. Dist. 161 F.3d at 637. This to maintain and repair the trust property. obligation obligation includes an to make where, It is here, also well settled that appropriate repairs buildings. As stat is created for successive beneficia Fratcher, 188.2, ed 3 Scott & at 53- ries, the trustee a duty owes to act impar ordinarily “[t]he trustee is duty under a tially as between or among them. As the keep in proper repair buildings and clear, Restatement makes a trust “[i]f other property that he holds trust.... succession, created for beneficiaries in repairs Such include whatever is reason trustee is under a duty to the successive ably necessary preserve to the property beneficiaries to act with regard due and to it in keep proper condition.” The respective their interests.” Restatement government as trustee “owes the beneficia (Second) (1959). § Trusts The of [here, ry the duty the of using Tribe] the court be particularly must careful in scru care reasonably prudent of a pro man in tinizing government’s the actions since the tecting against the trust res decay and government’s simultaneous role as trustee use, deterioration by by caused the ele ” and beneficiary of the trust creates a con ments, by catastrophe, or otherwise.... flict of interest as to the fulfillment of that Bogert, Trustees, The Law Trusts and of Indeed, obligation. type of Indeed, § at 513. under the common hardly unique. conflict is It is axiomatic trusts, law of duty “[t]he first of a trustee that where the sole trustee is one of the must preserve be to property the trust beneficiaries, “danger there is a that the this, intact. To do he must not suffer the trustee will unduly favor himself.” 2 Scott diminish, estate to waste or or fall out of Fratcher, 99.3, § & at 63. Actions of the repair....” Id. at 514. in “might trustee such a situation well be A trustee’s failure to act rea subject to careful scrutiny to determine sonably preserve the property trust will whether in view of antagonistic [its] inter waste, also a claim support permissive for est was abusing [it] the discretion con a type of claim which analogous is to a upon” obligations ferred it to fulfill its claim under the law of property. “Waste” 107.1, the Tribe. id. at 120. generally destruction, is defined as “the alteration, misuse, neglect or of property Application of principles these by one in rightful possession to the detri mandates that the trustee is “[w]here one ment of another’s interest in the same beneficiaries, permit of the he will not be property.” 8 Richard R. Powell & Michael ted the administration of the trust ¶ Wolf, A. Powell Property, on Real at expense favor his own interest at the of (2000). 56-3 that of other 2A beneficiaries.” id. words, waste,” notwithstanding at 560. In other turn,

“Permissive gen erally role beneficiary, results “from the failure of its as a the United States pos the sessor to exercise the care of a required reasonable as trustee is “to act with due suggests history tive Tribe in the of the interests the

regard” to (Second) obligation to maintain any assumed States Restatement property. trust historical aesthetic or property for the § 232 Trusts evidence that further Absent purposes. to the law trusts we look While Act had non- created govern principles general for the of Federal the Court purposes, economic trustee, the United States obligations was purpose must assume Claims examine the we must also in each case entirely economic. statute, treaty, “or other funda particular II, document,” Third, obligation Mitchell at of the United mental that creates eventu property to maintain S.Ct. States to determine na be defined relationship in order the Tribe al transfer to must relationship and whether the of the anticipated of that duration light ture of the altered in been of trusts has general property law of the trust States’ use United imposi way, either any particular passed; Act was the time the or obligations tion of additional to modi of the United States possible need Here, existing obligations. modification in order existing structures fy or demolish Act establishes we believe during to make use important principles. several occupancy; States period at the the property value of the economic First, right of the United deciding alleged breach. time express use of the ac propriety questions, these ly limited to use “administrative mea is to be United States tions 86-392, 74 Pub.L. No. purposes.” school of a reasonable the standard against sured property the for Use of Stat. 8 (Second) Trusts trustee. Restatement of a breach of purposes constitutes other § 176. Indeed, appears to the trust. impermissible that such agree, urges but an Finally, to obli addition here. uses have not occurred repair property, and the gation to maintain may obligated the United States Second, the reasonableness of the upon transfer to property restore to be actions are mea government’s has violated its Tribe if United States loss of economic by potential sured of during the term obligations maintenance Tribe can value to the Tribe unless (properly) modified if it has the trust13 or it when establish that the United during needs to suit its own property Act, an obli undertook passed the 1960 suggest do not term of the trust. We property for other gation to maintain of normal wear the occurrence Indeed, Restatement as purposes. here to obligates the United States tear clear, of settlor makes intention “[t]he (1960) original to its restore is which determines the terms condition, no express we otherwise the creation his intention at the time of of ) ” an nature of (Second as to the existence or views .... Restatement of added). which property, restore the obligation to Our (emphasis Trusts cmt. a law of general must be determined nothing in attention has been directed the 1960Act. statute, legisla- or its trusts modified background, its compel building can (First) in that Property § future interest 13. See Restatement of premises the condition (1936) (stating that where the "restoration cmt. b prior doing of the they were to the in which improperly altered a owner a life estate has act”). indefeasibly prohibited building, the owner of an vested 188, 189, urges VI that sections and 195 of the (First) Restatement Proper the Law only It remains to be determined (1936) ty apply to the Tribe’s claims and whether government’s breach of the obli support the court’s holding. But those remand, if gations, proven by the Tribe on provisions have application no here. That gives presently cognizable rise to a claim Restatement is clear that it does not di money for damages. We hold that it does. rectly Id., apply to trust situations. note Supreme As the Court held in Mitchell II: (‘When to ch. at 753 the person seek Given the existence of a trust relation ing protection has a future beneficial inter ship, naturally it follows that the Gov trust, est under a protections available ernment damages should be liable in for him ... part are a of the Law of Trusts the breach of its It duties. and are scope outside the of this Restate well established that a trustee is ac ment.”). event, any provisions those countable in damages for breaches discuss the remedies available to owners of trust. contingent future interests II, Mitchell 463 U.S. at 103 S.Ct. present when the holder of a life estate 2961. The Restatement of provides Trusts acts fails to act a manner causing support further proposition. for this Re- damage to that property. For example, (Second) (1959) statement Trusts section 188 of the Restatement provides, in (“If trust, the trustee commits a breach of pertinent part, that the holder of a contin (a) chargeable any he is with depre- loss or gent future in property interest “cannot ciation in resulting value of the trust estate recover damages immediately payable to ”). trust; from the breach of ... himself any act or omission of the While the Court of ap- Federal Claims owner of the estate for life.” Similarly, peared to recognize that a traditional provides, section 189 in pertinent part, claim, available, breach of trust if one was that the owner of a contingent future in necessarily states a claim for money dam- terest can a variety equitable obtain ages, that court appeared suggest that a against injurious remedies the present damages remedy permissive waste property, owner of a life estate in including analogy to the law of property could not be prohibitive injunction “a appropriate to all, only maintained at and that the avail- prevent the future doing of affirmative remedy injunctive. able was In this the done, type acts of the theretofore or court was mistaken. done, threatened to be the owner of the The Court of Federal Claims observed 189(a). § estate for life.” Id. at waste, permissive that “an action for even nothing There is proper, contingent if about the ordinarily give does not to a rise money claim.” Tribe’s fixture interest in the Apache proper- White Mountain words, 46 Fed. ty. Cl. at 28. The nothing other can divest the (First) (1936). provides: present 14. Property § Section 188 “When a Law Com (a) precedes estate for life a future fee accompanying interest in ment this section makes simple subject prece- which is a applies only to condition clear that it to holders of uncer dent, or which is vested but defeasible either tain future interests: "All which situations to part upon negative applicable in whole or in an event the occur- rule in this Section is improbable, rence of which is not then the have two elements in common.... The second interest, judicial uncertainty owner of such future in a these is an as to of interest." future behalf, a, proceeding brought solely in (emphasis his own Id. cmt. at 765-66 added). Here, however, damages immediately payable cannot recover there is no “uncer any to tainty himself for act or omission of the as the future to interest” of the Tribe in owner of the property. estate for life.” Restatement of the § cmt. c. Section 187 Id. at that once Ml title to Tribe of provides Restatement further its trust relation- terminates future in- indefeasibly vested owner of an in the trust interest ship. The Tribe’s right expect compliance terest has accordingly better described property is with this of the life estate the owner interest, future indefeasibly vested an duty of preservation: better described interest government’s divided ownership of land is When in the a life estate present as one akin to interests, being present a one into two property. being other an estate for life and the circumstances, more Under these in future interest fee indefeasibly vested are sections nearly analogous provisions absolute, future interest then the simple (First) of the Restatement 139 and 187 (a) a correlative to each of right includes sections, those a Under Property the owner of an estate for the duties of claim for beneficiary has an immediate life, (duty § in ... not to stated [as] any alleged failure to money damages for deterioration of land or struc- permit repair buildings. maintain and tures) .... “Duty entitled example, section For § Id. at of Land or Not to Permit Deterioration accompanying an com Finally, Structures,” pertinent part, provides, ment makes clear that the event (subject exceptions ap- not to certain here, the preceding owner estate — here) owner of an estate for plicable “the duty, this United States —breaches land duty preserve life ... has a future indefeasibly vested owner of in a reasonable state and structures damages interest can recover immediate (c) Moreover, comment repair....” breach: pertinent part, that: provides, section right When the of the owner of preservation clearly A act is repair or that the owner of the future interest is repair duty within whenever such such act, given for life do a as for estate shall necessary prevent progres- act or (see 139), ... make example, repairs of the land or struc- sive deterioration right through then is made effective existing or whenever the condition tures judicial specific action the compelling by such question, through as a result of the failure make act in doing of the interest repair giving will amount to substantial deteri- to the oumer of future judgment damages caused to of the land or structures from oration him the omission to act. the condition in which such land b, structures were at the time of the com- (emphasis Id. at cmt. at 759 add- ed).15 mencement of the estate for life. right timing govern- that there is no While the of end of

15. The dissent concludes uncertain, may there ment’s use have been damages future to sue for because Tribe’s question only was no that the Tribe had the "contingent” is under section 187 of interest remainder interest and that that interest was (First) Property, being Restatement there of indefeasibly vested rather than con- therefore certainty "no that the Tribe's future interest (First) Property See Restatement tingent. of Even if the Restatement will ever vest.” f, (1936) ("When § 157 cmt. at 546 a remain- (First) Property were the correct source of of vested, indefeasibly the remainderman der is enjoyment questions, law of the es- for trust acquire present certain to interest at some is tate the Tribe was certain because Con- future, time in the and is also certain to be gress, providing for a remainder interest permanently to retain thereafter entitled Tribe, plainly contemplate did not acquired.”). present interest so government's use for administrative or school (First) sure, Proper- the Restatement To be purposes perpetual. would be ty right of a vested is concerned with the sum, fully claim be tried” in the we hold that the Tribe’s Court of Federal States, cognizable money to a claim for Claims. Pawnee v. United gives rise denied, damages. Accordingly, we hold that (Fed.Cir.1987), cert. F.2d jurisdiction of Federal has Court Claims 108 S.Ct. 100 L.Ed.2d entertain it. The merits of the Tribe’s claim will be accordingly determined on

VII remand in the light of this decision. conclude that Act We the 1960 creates appeal, On this also ar- fiduciary relationship an enforceable be- gued that even if the Tribe has stated a tween the United States and the claim, proper it is barred under the six- may give cogniza- breach of which rise to a year statute of limitations set forth in 28 money damages. ble claim for re- On U.S.C. 2501. We note that the Court of mand, however, the Court of Federal Federal Claims did not reach this argu- may Claims determine that the suit ment, and we therefore leave this unan- premature as to buildings question swered to that court for resolu- States continues to use for administrative tion on remand. supra. See note purposes. or school remand, On the Court of Federal Claims portions

must further determine which CONCLUSION were under United States reasons, foregoing For the the decision control. Even as to the that was Court of Federal Claims is reversed controlled, so we recognize the exis- and remanded. tence of this “general fiduciary relation- ship any does not mean that every AND REVERSED REMANDED. necessarily claim ... a proper states claim for breach of the trust a claim which must No costs. damages remainderman pre who succeeds after the end of tation of before the end of the (section 187) multiple ceding may possible a life estate life es- use be in one situation (section 191), (life estates) recognizing using may tates that the re- actuarial tables but be right mainderman in both has situations difficult in the latter situation until the occur (First) (here, damages. to sue for The Restatement rence the event end of school or use), Property timing right does not address the of a administrative and that the of suit damages damages may remainderman's suit for where the in the latter situation timing enjoyment depends upon premature happening anoth- until the of that event (here (end uses). government's statutorily er event the end of the authorized Bol Cf. use). hardly ing administrative or school This is v. United 220 F.3d (Fed.Cir.2000) surprising convey- (holding at law since common this landowners’ against "takings government-caused ance have would violated the rule claims ero [for b., perpetuities. properLy] See id. at 228 cmt. illus. sion to accrued when the erosion ("A, owning simple substantially parcels at 938 Blackacre in fee had encroached the absolute, County damages reasonably transfers Blackacre 'to B so issue and the were fore seeable”). long as Blackacre is used as the site of the House; County Clearly premature Court thereafter to C and his lawsuit is not attempted executory buildings heirs.' The interest to C those has against fails because of a violation of the rule to use for school ceased administrative or

perpetuities.”). against perpetuities, purposes. possible The rule We leave this issue of however, conveyances prematurity buildings is not a limitation on to those still used as government. government the United States the the for resolution Court Claims, uncertainty prior particularly This in the duration of the Federal since decision of estate, timing may running whether under the law of trusts or those issues affect property, suggests only compu- law of the statute of limitations. to use MAYER, require, government does not dissenting. Judge, Chief an Indian school. The use the fort as affirm, the 1960 both because I would long they as as are need- phrase “for fiduciary duty a on the impose Act did not ed,” expressing fiduciary far from obli- the Tribe does and because government Secretary in discretion gation, vests future in indefeasibly an vested not hold op- to long the Interior to determine how land and build Apache in the Fort terest Because the sub- erate the Indian school. Mitchell, v. In ings. United States ject gov- of the trust excluded the matter 535, 542, S.Ct. U.S. start, it privilege ernment’s use from (1980) (Mitchell I), the Su L.Ed.2d 607 fiduciary obligation to maintain the has no regula held that statutes preme Court that only improvements land and for Tribe create a limited or “bare” tions that money damages. relationship between could lead fidu impose the Tribes do not States Accordingly, there should be no need give rise to ciary which would obligations whether the future interest held address However, in United money damages. contingent. In by the Tribe is vested or Mitchell, 224, 103 v. issue, however, has reaching the the court (1983) (.Mitchell 2961, 77 L.Ed.2d 580 S.Ct. nature the trust and misconstrued the II), fiduciary that a obli the Court found nothing held that is improvidently “[t]here regula statute or existed when the gation contingent about the Tribe’s future inter responsibili full government give tions in Moun property.” est White resources and land ty managing for Indian States, Apache tain Tribe v. United ante Indians. The stat for the benefit of the fact, government In has re scope define the regulations utes and right served the to use the trust Id. We held in obligation. long “for as as needed” for school or [it is] 1554, 1560 86 F.3d Brown v. United in the purposes. Nothing administrative (Fed.Cir.1996), fiduciary duty precludes the that it will grant possibility regu in explicit need not be the statute or perpetuity pur needed in for those lation, but the must take on or certainty there is no poses; supervision have control or of tribal mo future interest will ever It is Tribe’s vest. or property. nies and, contingent apt therefore as the court case, Act, which created the 1960 out, ly points contingent the owner of a trust, reserved to the right future interest has no to sue for right any part of the land and use money damages permissive Id. waste. improvements administrative or school government argued The that the Tribe’s they are purposes long for as needed contingent future interest was and that the provision for those This limits purposes. common law of as reflected government’s obligation to the Tribe 188, 189, sections and 195 of Restate- relationship simi- and creates a bare trust (First) Property ment the Law of bars Act lar to the General Allotment consid- monetary damages. the Tribe’s claim for I. in the 1960 Act Nothing ered Mitchell disagree money The court does not man- imposes fiduciary responsibility barred if the damages would be Tribe’s of the Tribe age the fort for the benefit contingent; merely it future interest were and, fact, specifically gov- it carves the it not. Therein lies the asserts unrestricted use for the right ernment’s said, error. As the court Al- out of the trust. specified purposes present “When a provides: Section 188 though for the benefit of the the school is precedes estate for life a future interest expressly permits, the 1960 Act but subject simple longer fee which is to a condi- no needs to use the precedent, tion or which is vested but pur- school administrative in part poses. defeasible either whole or Until the Secretary of the Interior upon an event occurrence of which is determines that the property longer is no improbable, not then the owner of such needed for pur- school or administrative interest, judicial future in a proceeding poses, the precedent condition will not oc- behalf, cur, brought solely in his cannot re- and the Tribe’s interest will not vest. damages immediately cover payable to Because there nothing is in the 1960 Act any himself for act or prevents omission of the from con- owner of the estate for life.” Restate- tinuing to use the for school or (First) ment Property Law purposes administrative indefinitely, there guarantee is no prece- condition dent will ever be met and the Tribe’s Apache White Mountain ante at future interest will ever pre- vest. This goes n. 14. The court on to note that money damages cludes its claim for and is uncertainty there must be an as to the an independent ground on which to affirm apply, future interest for this rule to judgment of the Court of Federal makes conclusory statement that there Claims. “no ‘uncertainty as to the future inter- est’ of the Tribe in the trust property.” assertion, Contrary

Id. to this there is a precedent vesting

condition to the interest, namely

Tribe’s future

Case Details

Case Name: White Mountain Apache Tribe v. United States

Court Name: Court of Appeals for the Federal Circuit

Date Published: May 16, 2001

Citation: 249 F.3d 1364

Docket Number: 00-5044

Court Abbreviation: Fed. Cir.