Amicus Curiae Brief — United States v. White Mountain Apache Tribe

No. 01-1067

In The

Supreme Court of the Cinited States

+ —

UNITED STATES OF AMERICA,

Petitioner

Vv.

WHITE MOUNTAIN APACHE TRIBE,

e —

On Writ Of Certiorari To The

United States Court Of Appeals

For The Federal Circuit

e-

BRIEF AMICUS CURIAE OF THE NATIONAL

CONGRESS OF AMERICAN INDIANS

IN SUPPORT OF RESPONDENT

Sd

JOHN E. ECHOHAWK

TRACY A. LABIN®

NATIVE AMERICAN RIGHTS FUND

1712 N St., NW

Washington, DC 20036

(202) 785-4166

‘Counsel of Record for Amicus

Curiae the Naiional Congress of

American Indians

September 2002

COCKLE LAW BRIEF PRINTING CO (800) 225.6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

In 1960, Congress declared that a former military post

in Arizona would “be held by the United States in trust for

the White Mountain Apache Tribe, subject to the right of

the Secretary of the Interior to use any part of the land

and improvements for administrative or school purposes

for as long as they are needed for that purpose.” Act of

Mar. 18, 1960, Pub. L. No. 86-392, 74 Stat. 8. The question

presented is whether that Act authorizes the award of

money damages against the United States for alleged

breach of trust in connection with such property.

ii

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE................cceeeeeeeees 1

INTRODUCTION AND SUMMARY OF ARGU-

DEBIG TE .000000c0cccese1esseeecceescensseneneunnnnennnnnnnnnnnnnnnnnnnE 2

ARRUEIRIN TE 000000000080000000s0008seneseesentunnsinnnnnnnnnnnnnannn 6

I. THE TUCKER ACT WAIVES THE UNITED

STATES’ IMMUNITY FROM SUIT FOR

DAMAGES WHERE THE SUBSTANTIVE

LAW UPON WHICH CLAIMANTS RELY

“CAN FAIRLY BE INTERPRETED AS

MANDATING COMPENSATION BY THE

FEDERAL GOVERNMENT” ............cccccceeseeee 6

II. THE 1960 ACT CAN FAIRLY BE INTER-

PRETED AS MANDATING COMPENSA-

TION BY THE FEDERAL GOVERNMENT

FOR THE DAMAGES SUSTAINED IN THIS

A. The Language Of The 1960 Act Creates A

Specific Trust And Establishes The

United States’ Exclusive Use And Con-

trol Of Portions Of The Tribe’s Trust

PROCTER .cccccccccccccssssonsebensensniennnnenenaananenaal 8

B. Duties Giving Rise To Damages Are Im-

plied Im Te 1968 Ags ..ccccccvcosssecesisetecosssen 12

C. The General Trust Relationship Rein-

forces The Conclusion That The 1960 Act

Is Fairly Interpreted As Mandating

Compensation For The Damages Here.... 17

D. The 1960 Act Is Distinguishable From

The General Allotment Act...................06 22

CONCLUSION ..cccccccccccccccscescssoscocsosesssssnesesenssssnesennes 25

ili

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Army & Air Force Exchange Service v. Sheehan, 456

EES ee 7

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

EEE ETD 18, 19, 21

City of New York v. United States, 97 F. Supp. 808

EE EEE 15

Department of the Interior v. Klamath Water Users

Protective Association, 532 U.S. 1 (2001)................. 14, 19

Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823)......... 18

Mitchel v. United States, 34 U.S. 711 (1835)............0000000. 18

Montana v. Blackfeet, 471 U.S. 759 (1985)..............0000.. 8, 10

National Labor Relations Board v. Amex Coal Co.,

i sensuesnanenossasecs 14

Nevada v. United States, 463 U.S. 110 (1983)............. 14, 19

Oneida Indian Nation v. County of Oneida, 414

EES ESET 18

Seminole Nation v. United States, 316 U.S. 286

essccnsesoeneces 14, 19

Shoshone Tribe v. United States, 299 U.S. 476

EEA 13, 18

United States v. Algoma Lumber Co., 305 U.S. 415

i. sssssennencngvorossooscoses 18

United States v. Bostwick, 94 U.S. 53 (1876) .......... 5, 16, 17

United States v. Mason, 412 U.S. 391 (1973) ........000..00000.. 14

United States v. Mitchell, 445 U.S. 535 (1980).......... passim

United States v. Mitchell, 463 U.S. 206 (1983).......... passim

iv

TABLE OF AUTHORITIES — Continued

Page

United States v. Wilson, 503 U.S. 329 (1992) .................... 10

Williams v. Taylor, 529 U.S. 420 (2000) .............ccccceeeeeeeeees 8

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) .............. 19

STATE CASES

Dehn v. S. Brand Coal & Oil Co., 63 N.W.2d 6

FRESE ease Boe tpenee Sn seve Sn Lerman 16

Hausmann v. Hausmann, 596 N.E.2d 216 (Ill. App.

Se ieee ene rece eae 15

FEDERAL STATUTES

Act of Mar. 18, 1960, Pub. L. No. 86-392, 74

BD, © cncsnecennssesnssnessseumenmessnsntonnnninmnenenminesnns passim

General Allotment Act, 25 U.S.C. § 331 et seq......22, 23, 24

Indian Reorganization Act, 25 U.S.C. §§ 461-479............. 24

Indian Tucker Act, 28 U.S.C. § 1506 ....................cccccsceceeees 3

r,t 3,6

Sy TENE AP It resinecsinienioeineaiinnnatenneinenieaninnatectiacadeiaaamauiieidianesidial 20

Northwest Ordinance of 1787, art. III, reprinted in

32 Journals of the Continental Congress 340-41

(Roscoe R. Hill ed., 1936) (reenacted by Act of

Fe, Fn es Ge GAB eeenecticncertntnctsnnntininenintencmnmennen 20

MISCELLANEOUS

Bogert, Trusts and Trustees, § 582 (rev. 2d ed.

TABLE OF AUTHORITIES — Continued

Page

Felix S. Cohen, Handbook of Federal Indian Law

ERE A STRSTR eons enn Ser UDR RO 24

Powell on Real Property §§ 16.02, 34.02 (1981)................ 13

Scott, The Law of Trusts, § 176 (4th ed. 1987).................. 13

Gregory M. Stein, The Scope of the Borrower's

Liability in a Non-Recourse Real Estate Loan, 55

Wash. & Lee L. Rev. 1207 (1998) ..0..0.........ccccececceeeeeeeees 15

Hearing on H.R. 8796 and S. 2268 Before the

Subcommittee on Indian Affairs, Committee on

Interior and Insular Affairs, 86th Cong. (Feb. 11,

EEA eee ea ene eC ee 10, 11, 12

Mary Christina Wood, Protecting the Attributes of

Native Sovereignty: A New Trust Paradigm for

Federal Actions Affecting Tribal Lands and Re-

sources, 1995 Utah L. Rev. 109 (1995)................00cccceeee 20

Mary Christina Wood, Indian Land and the Prom-

ise of Native Sovereignty: the Trust Doctrine

Revisited, 1994 Utah L. Rev. 1471 (1994) .............00.00... 20

Restatement of Property § 9 (1936)................ccccccccceeeeeeeees 15

Restatement (Second) of Trusts § 176 (1959).................... 13

Restatement (Second) of Property § 1.2 (1977)................. 15

Restatement (Second) of Property § 12.2 (1977)............... 16

Restatement (Third) of Property: Mortgages § 4.6

IIe ititiesteiereniegpasiaubonisinnthtdementangnsigiinsiaiasaieiatanimeiinannisidisatas 15

8 = LEEDS mere enenes 9,10

1

INTEREST OF AMICUS CURIAE'’

Amicus Curiae, the National Congress of American

Indians (NCAI), is the oldest and largest national organi-

zation of tribal governments in the United States. Like the

White Mountain Apache Tribe, NCAI’s tribal members all

have trust resources, resources over which they do not

have sole ownership. As is the case here, their ownership

is a beneficial ownership, which means that fee title is

held by the United States in trust for the benefit of the

tribes. Also, as is the case here, the United States often

exercises extensive control over these trust resources.

While the narrow question presented in this case

involves the interpretation of a unique statute passed for

the benefit of the White Mountain Apache Tribe, several

underlying issues in this case are of broad importance to

NCAI members. The statute at issue here, the 1960 Act is

being interpreted for the purpose of determining whether

the White Mountain Apache Tribe may sue the United

States for damages on a breach of trust claim. In this

context, broader principles concerning the fundamental

federal/tribal trust relationship and questions regarding

when the United States may be held liable in damages for

breaches of trust in the context of that relationship are

* Counsel for Petitioner and Counsel for Respondent have con-

sented to the filing of the brief of amicus. The consents are submitted

for filing herewith.

Counsel for a party did not author this brief in whole or in part. No

person or entity, other than Amicus Curiae, their members or their

counsel made a monetary contribution io the preparation and submis-

sion of this brief.

2

raised. NCAI’s members all have substantial interest in

these underlying issues and hence, have a substantial

interest in this case.

¢

INTRODUCTION AND

SUMMARY OF ARGUMENT

In 1960 Congress passed a unique act for the benefit

of the White Mountain Apache Tribe (“Tribe”): the Act of

Mar. 18, 1960, Pub. L. No. 86-392, 74 Stat. 8. (“1960 Act”),

which provides:

All right, title, and interest of the United States

in and to the lands, together with the improve-

ments thereon, included in the former Fort

Apache Military Reservation, created by Execu-

tive order of February 1, 1887, and subsequently

set aside by the Act of January 24, 1923 (42 Stat.

1187), as a site for the Theodore Roosevelt

School, located within the boundaries of the Fort

Apache Indian Reservation, Arizona, are hereby

declared to be held by the United States in trust

for the White Mountain Apache Tribe, subject to

the right of the Secretary of the Interior to use

any part of the land and improvements for ad-

ministrative or school purposes for as long as

they are needed for that purpose.

Act of Mar. 18, 1960, P.L. 86-392, 74 Stat. 8.

The Tribe claimed that pursuant to this Act the

United States used portions of the Tribe’s trust property

for the authorized purposes and in so doing exercised

complete and exclusive control over that property. Re-

cently, the United States completed its need for portions of

the land and buildings and proposed to release its use

TEE EL mS

3

interest. The Tribe refused to accept the release without

indemnification however, because the Tribe alleged, that

while under its exclusive use and control, the United

States, “destroyed, materially altered, caused to deterio-

rate, ... unreasonably and improperly used, abused,

neglected, mismanaged, and failed to act to protect” that

property. Complaint at 6-7, para. 27. It further alleged

that the United States, “committed waste by deliberately

pulling down buildings, and removing things affixed to

and constituting a material part of the trust corpus, and

has failed to exercise even the ordinary care of a prudent

person for the preservation and protection of the Tribe’s

trust corpus.... ” Jd. at 7, para. 28. Claiming that the

United States breached its fiduciary duty to the Tribe by

allowing or causing waste of the tribal trust property over

which it had exclusive control, the Tribe sued in the

United States Court of Federal Claims for money damages

against the United States.

The Tribe invoked the jurisdiction of the Court of

Claims under the Tucker Act, 28 U.S.C. § 1491, and the

Indian Tucker Act, 28 U.S.C. § 1505.’ As the Court has

held, the Tucker Act waives the United States’ sovereign

immunity from suit whenever the “source of substantive law”

upon which the claim is based, “can fairly be interpreted as

mandating compensation by the Federal Government.... ”

* The Indian Tucker Act, 28 U.S.C. § 1505, provides tribal claim-

ants the same access to the Court of Claims that the Tucker Act

provides to individual claimants. As any analysis regarding Tucker Act

jurisdiction applies to Indian Tucker Act jurisdiction, see United States

v. Mitchell, 445 U.S. 535, 539-40 (1980), any reference herein to Tucker

Act jurisdiction is meant also to include and apply to Indian Tucker Act

jurisdiction.

4

United States v. Mitchell, 463 U.S. 206, 216-217 (1983)

(Mitchell II). No additional waiver of sovereign immunity

need be found. Jd. at 218-219.

Hence, if the positive law relied on here, the 1960 Act,

can fairly be interpreted as mandating compensation by

the Federal Government, it authorizes the Court of Claims

to award damages for any proven breach of trust. As the

Court held in Mitchell IJ, statutes and regulations are so

fairly interpreted when:

All of the necessary elements of a common-law

trust are present: a trustee (the United States), a

beneficiary (the Indian allottees), and a trust

corpus (Indian timber, lands, and funds). [Refer-

encing Restatement (Second) of the Law of

Trusts § 2, Comment h, at 10 (1959).) ‘(WJhere

the Federal Government takes on or has control

or supervision over tribal monies or properties,

the fiduciary relationship normally exists with

respect to such monies or properties (unless Con-

gress has provided otherwise) even though noth-

ing is said expressly in the authorizing or

underlying statute (or other fundamental docu-

ment) about a trust fund, or a trust or fiduciary

connection.’ (quoting Navajo Tribe of Indians v.

United States, 224 Ct.Cl. 171, 183, 624 F.2d 981,

987 (1980)).

Mitchell II, 463 U.S. at 225. Here, the language of the

1960 Act creates a trust, vests the Tribe with beneficial

title in the trust property, makes the United States the

trustee of that property, and authorizes the United States,

the trustee, to exercise exclusive control over portions of

the property (a right which it did in fact, exercise). Hence,

here, like in Mitchell II, a fiduciary relationship arises

under the 1960 Act.

5

Contrary to the United States’ suggestion, the purpose

of the United States’ control here does not negate the

fiduciary relationship and the duties that “naturally” arise

therefrom. Jd. at 226. Although the United States was

authorized to use the Tribe’s trust property to run an

Indian school, and not to generate profit for the Tribe, the

fact that the property was trust property and that the

United States was the trustee of that property, did not

change. The fiduciary duties naturally implied in the 1960

Act remained, as did the liability in damages for breach of

those duties.

As part of its fiduciary responsibilities, the United

States here is also liable to the Tribe for waste of the

Tribe’s property in its capacity as tenant — which, Amicus

argues, describes the United States’ use status here. See,

e.g., United States v. Bostwick, 94 U.S. 53 (1876) (which

held the United States impliedly liable for waste under a

lease).

As in Mitchell II, the conclusion that the 1960 Act can

fairly be interpreted as mandating compensation for the

damages sought here is reinforced by the well-established,

long-standing general trust relationship between the

United States and Indian tribes. And, as in Mitchell IJ, the

substantive source of law at issue here can easily be

distinguished from the source of law which was at issue in

United States v. Mitchell, 445 U.S. 535 (1980) (“Mitchell I”)

— a source of law which could not be fairly interpreted as

mandating compensation because it gave the United

States no active role in managing or taking care of the

property.

Amicus comes before this Court in support of the

White Mountain Apache Tribe. It respectfully urges this

6

Court to affirm the Court of Appeals’ holding that the 1960

Act is an act that can “fairly be interpreted as mandating

compensation by the federal government” for the particular

breaches of trust allegedly committed here, and to affirm

the jurisdiction of the Court of Federal Claims to hear the

Tribe’s suit under the Tucker Act.

+

ARGUMENT

I. THE TUCKER ACT WAIVES THE UNITED

STATES’ IMMUNITY FROM SUIT FOR DAM-

AGES WHERE THE SUBSTANTIVE LAW UPON

WHICH CLADMANTS RELY “CAN FAIRLY BE

INTERPRETED AS MANDATING COMPENSA-

TION BY THE FEDERAL GOVERNMENT”

The question here is whether the Court of Federal

Claims has authority to award damages in a suit brought

by the White Mountain Apache Tribe (“Tribe”) under the

Tucker Act. The Tucker Act provides in relevant part: “The

United States Court of Federal Claims shall have jurisdic-

tion to render judgment upon any claim against the

United States founded either upon the Constitution, or

any Act of Congress or any regulation of an executive

department.... ” 25 U.S.C. § 1491(a\1). For jurisdiction

to lie, there must be a waiver of sovereign immunity. As

the Court explicitly held in United States v. Mitchell, 463

U.S. 206, 215-16 (1983) (Mitchell ID), if a claim falls within

its terms, the Tucker Act provides a waiver of sovereign

immunity.

[TJhere is simply no question that the Tucker Act

provides the United States’ consent to suit for

claims founded upon statutes or regulations that

create substantive rights to money damages. If a

7

claim falls within this category, the existence of a

waiver of sovereign immunity is clear.

Mitchell II, 463 U.S. at 218; see also Id. at 215-217. See

also Army & Air Force Exchange Service v. Sheehan, 456

U.S. 728, 734 (1982) (recognizing that waiver of the United

States’ sovereign immunity to suit must be unequivocally

expressed and holding that “the Tucker Act effects . . . such

explicit waiver. ... ”).. Because the Tucker Act waives the

United States’ sovereign immunity, determination of the

lower court’s jurisdiction here turns on the analytically

distinct question: “whether the statutes or regulations at

issue can be interpreted as requiring compensation.” Jd.

Because this question is distinct from that of waiver of

sovereign immunity, the rule requiring that waivers of

sovereign immunity be strictly construed does not apply.

The Court also made this clear:

Because the Tucker Act supplies a waiver of im-

munity for claims of this nature, the separate

statutes and regulations need not provide a sec-

ond waiver of sovereign immunity, nor need they

be construed in the manner appropriate to waiv-

ers of sovereign immunity. ‘The exemption of the

sovereign from suit involves hardship enough

where consent has been withheld. We are not to

add to its rigor by refinement of construction

where consent has been announced.’

Id. at 218-219. This holding in Mitchell II is crucial.

However, its importance is ignored and even contradicted

by the United States in its brief as it repeatedly tries to

extend the notion of strict construction into this case. See

U.S. Br. at 14, 17, 18 (citing numerous pre-Mitchell II, and

non-Tucker Act cases). Amicus respectfully urges this Court

to adhere to the precedent it established in Mitchell I] and

8

teject the United States’ invitations “to add to the rigor” of

construction here “where consent has been announced.”

II. THE 1960 ACT CAN FAIRLY BE INTERPRETED

AS MANDATING COMPENSATION BY THE

FEDERAL GOVERNMENT FOR THE DAMAGES

SUSTAINED IN THIS CASE

A. The Language Of The 1960 Act Creates A

Specific Trust And Establishes The United

States’ Exclusive Use And Control Of Por-

tions Of The Tribe’s Trust Property

As with all cases of statutory interpretation, the

Court’s task begins with the language of the Act. See

Williams v. Taylor, 529 U.S. 420, 431 (2000). Here, the

language is examined to determine whether the Act “can

fairly be interpreted as mandating compensation by the

Federal Government for the damages sustained.” As the

Court has made clear, the language may do so either

explicitly or implicitly. Mitchell II, 463 U.S. at 217, n.16

and 218. And, any ambiguity as to whether the language

may be so fairly interpreted should be resolved in favor of

the Tribe. Montana v. Blackfeet Tribe, 471 U.S. 759, 766

(1985).

The language, “held ... in trust,” places land in trust

for the Tribe and creates a trust relationship between the

United States and the Tribe. Indeed, the language of the

1960 Act creates a very specific trust: it clearly identifies a

trustee (“the United States”), a beneficiary (“the White

Mountain Apache Tribe”) and a trust corpus (“the lands,

together with the improvements thereon, included in the

former Fort Apache Military Reservation... .”).

——

9

In addition to creating a specific trust, Congress,

through the language “subject to the right of the Secretary

of the Interior to use,” authorized the United States to use

and control portions of the trust property that it had just

conveyed to the Tribe.’ Although Congress granted the

United States the right to use portions of the trust prop-

erty, it did not eliminate the trust responsibility, remove or

reserve any part of the property from trust status, nor did

it relieve the United States of its status as trustee over

that property.

The federal government suggests otherwise. In argu-

ing that the language “carves out of the trust” the right of

the federal government to use the property, the United

States seems to suggest that either the property at issue is

not trust property, or that it is no longer a trustee. See

U.S. Br. at 11, 24-25. Nothing in the language supports

such a reading. Indeed, the language compels the opposite

conclusion. The language “/a/Jll right, title, and interest”

(emphasis added) indicates that Congress’ intended to vest

the Tribe with beneficial title to the entirety of the trust

property.‘ Also, any suggestion that the United States is

* Although Congress authorized use, this use interest was limited.

First, the statute specifically uses the words of limitation “so long as”

which temporally limits the United States’ use, and second, the statute

specifies that the property may be used only for two purposes— adminis-

trative or school purposes.

* That intent is supported by language in the legislative history of

the 1960 Act. For instance, the Senate Report explicitly stated that the

purpose of the bill which was to become the 1960 Act was, “to provide

that the United States holds in trust approximately 7,579 acres of land,

together with improvements thereon, for the White Mountain Apache

Tribe of Arizona.” S. Rep. No. 86-671 at 1 (1959) (7,579 acres of land

and the improvements being the entirety of the conveyance). And, in

(Continued on following page)

10

not currently the trustee of the property is rebutted by

Congress’ explicit use of the present tense in the 1960 Act,

“are hereby declared to be held.” This language indicates

that Congress intended to create the trust immediately,

make the United States the trustee of all the land imme-

diately, and vest the Tribe with beneficial title immedi-

ately. United States v. Wilson, 503 U.S. 329, 333 (1992)

(“Congress’ use of a verb tense is significant in construing

statutes.”). If there is any ambiguity as to any of these

points, however, that ambiguity should be resolved in favor

of the Tribe. Montana v. Blackfeet, 471 U.S. 759 (1985).

As the Court held in Mitchell II, federal control of

tribal trust property is crucial in determining whether a

source of law may be fairly interpreted as mandating

compensation such that it gives rise to a cognizable claim

for breach of trust. On this point, the Court held:

[WJhere the Federal Government takes on or has

control or supervision over tribal monies or prop-

erties, the fiduciary relationship normally exists

describing the value of the lands and improvements placed in trust for

the Tribe, the record explicitly described the value of all the land and

improvements. The record stated that the “lands to be donated,

exclusive of improvements, are valued at $141,000. The improvements

are located in the Theodore Roosevelt School area and consist of school

building and plant valued at $495,980, roads and streets valued at

$160,000 and irrigation laterals and ditches valued at $24,372. Id. at 2.

The understanding was the same in the House of Representatives. In

discussing the conveyance, Congressman Stewart L. Udall, “acknow!l-

edged that the department has agreed the whole thing would go back to

trust status.... ” Hearing on H.R. 8796 and S. 2268 Before the

Subcommittee on Indian Affairs, Committee on Interior and Insular

Affairs, 86th Cong. (Feb. 11, 1960) (Statement of Stewart L. Udall,

Representative of the State of Arizona) (Emphasis added).

in atin ie a a

11

with respect to such monies or properties (unless

Congress has provided otherwise) even though

nothing is said expressly in the authorizing or

underlying statute (or other fundamental docu-

ment) about a trust fund, or a trust or fiduciary

connection.

Mitchell II, 463 U.S. at 225. As in Mitchell IJ, the Tribe

here alleges that the United States did exert control,

indeed, exclusive control over portions of the Tribe’s trust

property pursuant to the terms of the 1960 Act. While the

purpose of the United States’ control of the trust property

here differs from that in Mitchell IJ, the import of the

exclusive control is no less important to the conclusion

that the 1960 Act can fairly be interpreted as mandating

compensation for the damages sought here.

In its brief, the United States argues that for federal

control to play a part in determining whether the United

States is subject to liability, such control must be specifi-

cally, “for the benefit of the Indians.” See U.S. Br. at 31. In

this way, the United States suggests that the purpose of

control, rather than the extent of control is what governs.

Id. at 7. From this premise, it tries to impress upon the

Court that its use of the Tribe’s trust property was not for

the Tribe’s benefit but for its “own benefit” or its “own

purposes.” U.S. Brief at 7, 22 (emphasis in original), 25. In

addition to being disingenuous,’ this assertion is irrele-

vant.

* The United States has the right to use this property to operate an

Indian school, for the benefit of Indians. As Stewart Udall recognized

during hearings on the 1960 Act, “[t}he department approves the

legislation and proposes merely that a proviso be put in that the

(Continued on following page)

12

It is true that the United States did not manage and

control the property in question for “the purpose of pro-

tecting the Tribe’s financial interest,” U.S. brief at 7, or to

manage the property solely for the benefit of the Tribe to

generate proceeds and ensure profit for the Tribe. Jd. at 27.

However, the Tribe here is not suing to recover damages for

mismanagement of this nature.’ Rather, the Tribe here is

suing to recover for the United States’ outright neglect,

waste and destruction of tribal trust property. See Com-

plaint at para. 17. Hence, language requiring the United

States to “manage the property for the benefit of the

Indians” is neither necessary nor appropriate to create the

duty to not waste the property.

B. Duties Giving Rise To Damages Are Im-

plied In The 1960 Act

As explained above, the 1960 Act creates a trust for

the Tribe and grants the trustee, the United States,

government right to continue to operate the school, which of course, is

for the benefit of the Indians. ...” Hearing on H.R. 8796 and S. 2268

Before the Subcommittee on Indian Affairs, Committee on Interior and

Insular Affairs, 86th Cong. (Feb. 11, 1960) (Statement of Stewart L.

Udall, Representative of the State of Arizona) (Emphasis added).

* In both Mitchell I and Mitchell IJ, the question presented to the

Court was whether the United States was liable for the mismanagement of

timber resources. The allegations in both Mitchell ] and Mitchell II were

that “the Government: (1) failed to obtain fair market value for timber sold;

(2) failed to manage timber on a sustained-yield basis and to rehabilitate

the land after logging; (3) failed to obtain payment for some merchantable

timber; (4) failed to develop a proper system of roads and easements for

timber operations and exacted improper charges from allottees for roads;

(5) failed to pay interest on certain funds and paid insufficient interest on

other funds; and (6) exacted excessive administrative charges from

allottees.” 445 U.S. at 537, 463 U.S. at 210.

13

limited rights to use the trust property. Under even the

most rudimentary principles of the obligations of a trustee

in using and controlling trust property, it can fairly be

implied that the Secretary has a duty not to waste that

property. For, that “would not be an exercise of guardian-

ship, but an act of confiscation.” Shoshone Tribe v. United

States, 299 U.S. 476, 497 (1937). As stated in the Restate-

ment (Second) of Trusts § 176 (1959), “[tJhe trustee is

under a duty to the beneficiary to use reasonable care and

skill to preserve the trust property.” This duty includes

protecting the property from loss, damage, or destruction.

See Id. Comment (b); Bogert, Trusts and Trustees, § 582,

at 346 (rev. 2d ed. 1980). And, under the law, breach of this

trust duty gives rise to a claim for monetary damages.

Scott, The Law of Trusts, § 176, at 482-489 (4th ed. 1987).

Mitchell II plainly confirmed this when it held:

Given the existence of a trust relationship, it

naturally follows that the Government should be

liable in damages for breach of its fiduciary du-

ties. It is well established that a trustee is ac-

countable in damages for breaches of trust... .

This Court and several other federal courts have

consistently recognized the existence of a trust

relationship between the United States and an

Indian or Indian tribe includes as a fundamental

incident the right of an injured beneficiary to sue

the trustee for damages resulting from a breach

of trust.

Mitchell II, 463 U.S. at 226. Given this clear precedent,

the government’s repeated suggestions that for a statute to

be fairly interpreted as mandating compensation, it must

be of a money character, is ill-founded. See U.S. Br. at 11,

16-17, 21.

14

Also ill-founded are the United States’ assertions that

the general law of trusts plays no role in informing the

interpretation of the 1960 Act - an Act which clearly

creates a trust and designates the United States the

trustee. See U.S. Br. at 12. This Court has explicitly stated

that “[iJt may be that where only a relationship between

the government and the tribe is involved, the law respect-

ing obligations between a trustee and a beneficiary in

private litigation will in many, if not all, respects ade-

quately describe the duty of the United States.” Nevada v.

United States, 463 U.S. 110, 127 (1983). See also Mitchell

II, 463 U.S. at 226 & n.30; United States v. Mason, 412

U.S. 391, 398 (1973); Seminole Nation v. United States,

316 U.S. 286, 297 (1942) (the federal government has

“charged itself with moral obligations of the highest

responsibility and trust ... [and] should therefore be

judged by the most exacting fiduciary standard”); Depart-

ment of the Interior v. Klamath Water Users Protective

Ass’n, 532 U.S. 1, 11 (2001) (recognizing that the Federal-

Indian trust relationship “has been compared to one

existing under a common law trust”). Also, in other con-

texts, when in interpreting the statutory phrase, “held in

trust,” the Court has held that “[wJhere Congress uses

terms that have accumulated settled meaning under

either equity or the common law, a court must infer, unless

the statute otherwise dictates, that Congress means to

incorporate the established meaning of these terms.”

National Labor Relations Board v. Amex Coal Co., 453

U.S. 322, 330 (1981).

papiiseiedineee Ee

15

Similar duties, obligations, and liabilities not to

permit or commit waste® can also be implied under the

most basic tenets of American property law, tenets which

are so basic that they must surely be implied to be part of

the United States’ duties as trustee of tribal trust prop-

erty. Even if the United States is regarded here just in its

capacity as tenant, there is an implied duty not to waste

the Tribe’s property.’

The “concept of waste ... is an old one: {Flor he that

suffereth a house to decay, which he ought to repaire, doth

the waste....” Gregory M. Stein, The Scope of the Bor-

rower’s Liability in a Non-Recourse Real Estate Loan, 55

Wash. & Lee L. Rev 1207, 1284 n.146 (1988) (quoting

Edward Coke, The Second Part of the Institutes of the Laws

of England Chap. 24, 145 (Professional Books Ltd. 1986)

(1817)). English common law defined waste as: “[aJny act

or omission which diminished the value of the estate or its

income, or increased the burdens upon it or impaired the

evidence of title thereto.” Hausmann v. Hausmann, 596

N.E.2d 216, 219 (Ill.App. 1992). “More recently, ‘[wJaste

occurs when someone who lawfully has possession of real

estate destroys it, misuses it, alters it or neglects it so that

* The new Restatement abandons the distinction between volun-

tary (intentional) and permissive (negligent) waste. See Restatement

(Third) of Property: Mortgages § 4.6 & cmt. b (1997). See City of New

York v. United States, 97 F. Supp. 808 (Ct. Cl. 1951) (U.S. responsible

for damages caused by neglect of leased property).

" Amicus argues that the United States’ use right is comparable to

the use right of a tenant. A leaseholder or tenant is one who has a

possessory estate, or a right to possession in the property, as the United

States has here. Powell on Real Property §§ 16.02, 34.02 (1981). See

also Restatement (Second) of Property § 1.2 (1977); Restatement of

Property § 9 (1936).

16

the interest of persons having a subsequent right to

possession is prejudiced in some way or there is a diminu-

tion in the value of the land being wasted.’” Jd. See also

Restatement (Second) of Property § 12.2 (1977).

Under these basic principles, the 1960 Act can be

“fairly interpreted” as including the implied duty “to

surrender the premises at the expiration of his term in as

good a condition as when they were taken, ordinary wear

and tear and damages from the elements excepted.” Dehn

v. S. Brand Coal & Oil Co., 63 N.W.2d 6, 11 (Minn. 1954).

Breach of this duty also gives rise to a claim for money

damages. See United States v. Bostwick, 94 U.S. 53 (1876);

Restatement (Second) of Property § 12.2.

This Court has confirmed that the doctrine of waste

applies when the United States is a tenant and that when

the United States does commit waste, it is implicitly liable

in damages. United States v. Bostwick, 94 U.S. 53 (1876).

In Bostwick a suit was brought against the United States

for damages to property over which the United States had

possession and control.’ The United States had possession

and control pursuant to a lease which provided only the

term of the lease and the rent, “without restriction as to

the use to which the property might be put.” 94 U.S. at 65.

Nothing in the lease explicitly imposed a duty on the

* The damages held to be waste in Bostwick are comparable to

those alleged by the Tribe here. As correspondence from the property

owner’s trustee stated, “While the United States occupied the premises

destroyed; three and one-half miles of fence torn down ... some sheds

were torn down. ... The part of the house not burned ... was greatly

damaged. .. . The premises were left in a dilapidated condition, and the

house unfit for occupancy.” Bostwick, 94 U.S. at 56.

17

United States not to commit waste during the tenancy.

The Court found this language was implicit in the lease.

The Court held that the United States was bound by

certain implied duties, such as the obligation “to use the

property as not unnecessarily to injure it ... that the

estate may revert to the lessor undeteriorated....” Jd. at

65-66. The Court held that this implied duty applied to the

United States just as if it had been obligated by express

language. Jd. at 66. The Court continued, “[a]Jll obligations

which would be implied against citizens under the same

circumstances will be implied against [the United States].”

Id. The Court held that the United States was liable in

damages for harm occurring while the United States was

in possession, not “to make good any loss which necessar-

ily results from the use of the property, but only such as

results from the want of reasonable care in the use,” hence

binding the United States “not to commit waste.” Jd. at 68.

Here, the same duty not to commit waste and to

return the property to the Tribe in the same condition as

when taken, normal wear and tear excepted, is implied in

the 1960 Act as much as if it had been expressly stated.

Likewise, the implication that where the United States

does commit waste, it is liable to the Tribe in damages, is

as plain as if specific language stating that “the United

States is liable in damages for waste committed” had been

used. That is the teaching of Bostwick.

C. The General Trust Relationship Reinforces

The Conclusion That The 1960 Act Is Fairly

Interpreted As Mandating Compensation

For The Damages Here

The Court has explained that the existence of the

genera! trust relationship is relevant in cases addressing

18

whether a statute can fairly be interpreted as mandating

compensation for breach of trust in the Indian law context.

As the Court indicated in Mitchell II, “[ojur construction of

these statutes and regulations is reinforced by the undis-

puted existence of a general trust relationship between the

United States and the Indian people.” Mitchell IJ, 463 U.S.

at 225. Likewise here, the trust relationship reinforces the

interpretation of the 1960 Act as mandating compensation

for the United States’ destruction of property put in trust

by that Act.

Where property is held in trust by the federal govern-

ment for a tribe, the United States holds legal title and the

Tribe holds equitable or beneficial title. See United States v.

Algoma Lumber Co., 305 U.S. 415, 421 (1939). This rela-

tionship traces back to the first contact between the Indian

and European nations when it was recognized that even

though fee title vested in the “discovering” nations and

eventually, in the United States, Indians had the night of

use and occupancy. Johnson v. M’Intosh, 21 U.S. (8 Wheat.)

543 (1823). This right of use and occupancy was as “sacred

as that of the United States to the fee.” Shoshone Tribe v.

United States, 299 U.S. 476, 497 (1937); see also Mitchel v.

United States, 34 U.S. 711, 746 (1835). Cherokee Nation v.

Georgia, 30 U.S. (5 Pet.) 1, 48 (1831).

Only last term, this Court recognized:

The existence of a trust obligation is not, of

course, in question.... The fiduciary relation-

ship has been described as ‘one of the primary

cornerstones of Indian law, ... and has been

compared to one existing under a common law

trust, with the United States as trustee, the In-

dian tribes or individuals as beneficiaries, and

the property and natural resources managed by

the United States as the trust corpus.

HOM, +

woe

19

Department of the Interior v. Klamath Water Users Protec-

tive Ass'n, 532 U.S. 1, 11 (2001) (citations omitted). Also,

the Court “has long recognized ‘the distinctive obligation of

trust incumbent by the government’ in its dealings with

Indian tribes, see e.g., Seminole Nation v. United States,

316 U.S. 286, 296 (1942).” Nevada v. United States. 463

U.S. 110, 127 (1983).

Inherent in the trust relationship are concomitant

trust duties — duties which trace to the first treaties and

mutual promises made between the federal and tribal

governments, when in exchange for vast relinquishments

of land and promises of peace, the United States guaran-

teed that it would protect the ability of Indian tribes to

continue their traditional way of life on remaining tribal

homelands or reservations. See American Indian Policy

Review Comm’n, 94th Cong., Final Report 126 (Comm.

Print 1977) (finding that the federal trust responsibility

emanates from “the unique relationship between the

United States and Indians in which the federal govern-

ment undertook the obligation to ensure the survival of

Indian tribes”). See also Oneida Indian Nation v. County of

Oneida, 414 U.S. 661, 667 (1974) (“the federal Government

took early steps to deal with the Indians through treaty,

the principle purpose often being to recognize and guaran-

tee the rights of Indians to specified areas of land”).

In addition to its treaty foundations, the United

States’ trust duty also traces to judicial opinions of this

Court and statutes of Congress. The Court first acknow]l-

edged the trust duty over 170 years ago in the Cherokee

cases: Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

(1831), and Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557

(1832). Worcester recognized “Indian nations as distinct

political communities, having territorial boundaries, within

20

which their authority is exclusive, and having a right to all

the lands within those boundaries, which is not only

acknowledged, but guaranteed by the United States.”

In addition to the judicial recognition, there is also a

long history of congressional recognition of the United

States’ trust duty. The most specific examples of early

congressional recognition of the trust duty are found in the

Trade and Intercourse Acts, see 25 U.S.C. § 177, which

prohibited non-Indians from encroaching on Indian lands,

regulated trade with the tribes, and prevented the alien-

ation of Indian land — all purposes aimed at fulfilling its

duty to protect the tribal land base. The Northwest Ordi-

nance of 1787, also demonstrated Congress’ early recogni-

tion of the federal duty of protection as part of the trust

relationship:

The utmost good faith shall always be observed

towards the Indians, their lands and property

shall never be taken from them without their

consent; and in their property, rights and liberty,

they never shall be invaded or disturbed, unless

in justified and lawful wars authorized by Con-

gress; but laws founded in justice and humanity

shall from time to time be made, for preventing

wrongs being done to them, and for preserving

peace and friendship with them.

Northwest Ordinance of 1787, art. [l, reprinted in 32

Journals of the Continental Congress 340-41 (Roscoe R. Hill

ed., 1936) (reenacted by Act of Aug. 7, 1789, ch. 8, 1 Stat.

50). See generally Mary Christina Wood, Protecting the

Attributes of Native Sovereignty: A New Trust Paradigm

for Federal Actions Affecting Tribal Lands and Resources,

1995 Utah L. Rev. 109 (1995) and Mary Christina Wood,

Indian Land and the Promise of Native Sovereignty: the

STO ae “yey eager Ch! ee aston ian ll ay >

21

Trust Doctrine Revisited, 1994 Utah L. Rev. 1471 (1994)

(providing a thorough discussion of the federal-Indian

trust relationship and responsibility).

Trust duties “are not gratuitous obligations assumed

on the part of the United States. They are obligations

founded upon a consideration paid by the Indians by

cession of part of their territory.” Cherokee Nation v.

Georgia, 30 U.S. (5 Pet.) 1, 58-59 (1831) (Thompson J.,

dissenting). As reiterated by President Nixon, the federal

government has not “taken on a trusteeship responsibility

for Indian communities as an act of generosity toward a

disadvantaged people” and it cannot “discontinue this

responsibility on a unilateral basis whenever it sees fit.”

President's Message to the Congress of the United States

on the American Indians, July 8, 1970, at 2. As President

Nixon recognized:

[Tjhe unique status of Indian tribes does not rest

on any premise such as this. The special rela-

tionship between Indians and the Federal gov-

ernment is the result instead of solemn obligations

which have been entered into by the United States

government. Down through the years, through

written treaties and through formal and informal

agreements, our government has made specific

commitments to the Indian people. For their

part, the Indians have often surrendered claims

to vast tracts of land and have accepted life on

government reservations. In exchange, the gov-

ernment has [made agreements].... [TJhe spe-

cial relationship between the Indian tribes and

the Federal government which arises from these

agreements continues to carry immense moral

and legal force.

Id.

22

D. The 1960 Act Is Distinguishable From The

General Allotment Act

The United States argues that the 1960 Act cannot be

fairly interpreted as mandating compensation for the

waste and destruction alleged here; that the substantive

basis for suit here is even more limited than the basis

relied upon in United States v. Mitchell, 445 U.S. 535

(1980) (“Mitchell I”). See U.S. Br. at 23-25.

In Mitchell I the Tribe claimed that the General

Allotment Act, 25 U.S.C. § 331 et seq. (“GAA”), provided a

substantive basis for suit for the alleged mismanagement

of tribal trust timber resources. The Court disagreed,

holding that, “[tJhe Act does not unambiguously provide

that the United States has undertaken full fiduciary

responsibilities as to the management of ellotted lands.”

445 U.S. at 542. Rather, the Court concluded that “the Act

created only a limited trust relationship between the

United States and the allottee that does not impose any

duty upon the Government to manage timber resources.”

Id. In multiple important ways, the situation here is

distinguishable from that in Mitchell /.

First, the trust created by the 1960 Act is a specific

trust pertaining to a particular tribe about a particular

and well defined piece of property. Unlike the GAA, the

1960 Act is not a general statute of general applicability.

Second, as noted above, supra, the Tribe here is not

claiming that the United States mismanaged its trust

property in the way that it was alleged to have misman-

aged the property in Mitchell I. The question here is not

whether the 1960 Act imposed on the Federal Government

the duty to manage the property for the economic benefit

of the Tribe. Rather, the question here is whether the Act

~ =~

ner

23

imposed on the Federal Government the duty not to waste

the Tribe’s property.

Third, unlike in Mitchell I, the 1960 Act created a

trust that specifically authorized the United States’ use of

the Tribe’s trust property. That crucial element of control

was missing in the GAA. The Court in Mitchell I explicitly

noted that the GAA did not “provide that the United

States has undertaken full fiduciary responsibilities as to

the management” of the trust property. Mitchell I, 445

U.S. at 542. The opposite was true. Under the GAA, “the

Indian allottee and not a representative of the United

States, is responsible for using the land for agricultural or

grazing purposes... . Under this scheme, then, the allottee

and not the United States, was to manage the land.”

Mitchell I, 445 U.S. at 542-543.

Finally, both the purposes and federal policies toward

Indians underlying the 1960 Act and the GAA completely

differed. As the Court emphasized in Mitchell I, the entire

purpose of the GAA was to limit, even extinguish, the

United States’ management role with respect to the

allotted properties. Congress “intended that the United

States ‘hold the land .. . in trust’ not because it wished the

Government to control use of the land and be subject to

money damages for breaches of fiduciary duty, but simply

because it wished to prevent alienation of the land and to

ensure that allottees would be immune from the state

taxation.” Jd. at 544.

These goals reflected the larger goals and policies in

existence when the GAA was passed. The GAA was passed

24

during one of the two periods in United States’ relations

with Indian tribes in which the federal government's

recognition of its trust responsibility ebbed.’ See Felix S.

Cohen, Handbook of Federal Indian Law, 127-143 (1982

ed.) (“Cohen”). The GAA was rightfully interpreted by the

Court to incorporate congressional intent at that time.

United States policy toward Indians and the trust

responsibility had shifted by the time the 1960 Act was

passed, however. In 1934 Congress passed the Indian

Reorganization Act, 25 U.S.C. §§ 461-479 (“IRA”) — an Act

which was meant specifically to reverse the policy of

allotment and the devastating effects of the GAA and

reaffirm its trust duties toward tribes. See Cohen at 144-

152. Indeed, as the provisions of the IRA itself demon-

strate, see 25 U.S.C. §§ 461-465, when the 1960 Act was

passed, Congress clearly intended to encourage and protect

tribal trust property — an intent which should be read into

the 1960 Act.

* The other period was the period known as the termination era,

see Cohen at 152-180, which is not applicable here.

25

CONCLUSION

For the reasons stated above, the decision of the Court

of Appeals should be affirmed.

Respectfully submitted,

JOHN E. ECHOHAWK

TRACY A. LABIN*

NATIVE AMERICAN RIGHTS FUND

1712 N St., NW

Washington, DC 20036

(202) 785-4166

labin@narf.org

*Counsel of Record for Amicus