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TUESDAY, DECEMBER 3, 2002

Members of the Supreme Court on Monday pressed the federal government to detail its trust responsibilities to the White Mountain Apache Tribe of Arizona, whose economy was recently devastated by the worst fire in state history.

During a one-hour oral argument session, justices asked whether the government has a duty to maintain Indian school and other buildings on behalf of the tribe. Justice Sandra Day O'Connor, an Arizona resident, started the questioning early, interrupting a Department of Justice attorney moments into his presentation.

"What basic responsibility does that entail?" she asked of the government's promise to hold 7,600 acres of land into trust for the tribe.

Gregory G. Garre, an assistant to Solicitor General Ted Olson, argued very little was owed for the property. Beyond protection from alienation and state taxation, he said Congress provided no further assurances when it acted in 1960 to return the land to the tribe.

"The trust responsibility created by the statute in this case is much more limited," he said.

Other Court members referred to a hypothetical that was posed in the case at the appeals court level. Justice Ruth Bader Ginsburg wondered if the Department of Interior could "dynamite" the property without consequence.

"If the secretary decided it was necessary to level the school buildings, the 1960 act would authorize the secretary to do that," she posited.

"What trust duties duties does the United States have?" Justice Anthony M. Kennedy later stated. "I think your answer is that there are no fiduciary obligations involved."

Robert Brauchli, an attorney for the tribe, urged the Court to rule otherwise. He said the government, as a trustee, assumed responsibility for the buildings by continuing to use them to educate Indian children and for other purposes.

"If the secretary of the Interior did not take control of these buildings," he said, "we would not be here today."

But the justices pushed Brauchli to explain why the government should be held liable for situations in which a private trustee would not otherwise be held accountable. Justice Antonin Scalia said the tribe's demand that the trustee pay for upkeep out of its own pocket was inconsistent with common law trust standards.

"I don't know of any lawsuit" that can be filed in such a case, he said.

"But I know the Indians can," added Justice Stephen G. Breyer.

"Whose money do you spend?" asked Justice John Paul Stevens. "The trustee's or the trust?"

In this instance, the tribe filed filed suit in the Federal Court of Claims for $14 million, the amount it says will bring the property to a 1960 level. Brauchli said the actual claim was in the $8 million range.

The claims court dismissed the suit, siding with Clinton administration attorneys who said there were no grounds for the claim. The Federal Circuit Court of Appeals in May 2001 reversed, finding that the 1960 law created a fiduciary relationship, and in turn, money damages for alleged breach of trust.

The Bush administration appealed and its main theme is that the circuit court has unfairly broadened the scope of the government's liability for trust asset mismanagement. It has asked the Supreme Court to strike down the Apache claim under the Mitchell precedents that set out the conditions under which the U.S. can be sued.

Garre argued that the dispute was "completely unlike" the Mitchell decision that allowed Quinault tribal members to recover money for timber mismanagement. He said the Apache property was a "bare" trust for which the government has no full fiduciary obligations, such as preventing waste, a common law trust standard cited by the Federal Circuit.

Brauchli said the tribe's claim applies only to those buildings that the government controlled, thus giving rise to a valid Mitchell claim. He likened the trust to a "purgatory state" where "basketball-sized" holes in a student's dormitory have gone unrepaired.

"It's a play thing for the Bureau of Indian Affairs to play with and destroy," he said.

A ruling on the case, which was heard in tandem with a related one affecting the Navajo Nation, is expected by summer 2003. Chief Justice William H. Rehnquist did not take part in the oral arguments due to recent surgery but the Court said he will participate in the final decision.

Relevant Documents:
Supreme Court Docket Sheet: No. 01-1067 | Petition: United States | Response: United States | Merits Brief: United States | Reply Brief: United States

Decision Below:
White Mountain Apache Tribe v. US, No 00-5044 (Fed Cir. May 16, 2001)

Relevant Laws:
Lands Held in Trust for the White Mountain Apache Tribe (Pub. L. 86-392, 1960)

Relevant Links:
U.S. Supreme Court - http://www.supremecourtus.gov
White Mountain Apache Tribe - http://www.wmat.nsn.us

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