United States v. White Mountain Apache Tribe, 537 U.S. 465, 12 (2003)

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476

UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE

Opinion of the Court

"it naturally follows that the Government should be liable in damages for the breach of its fiduciary duties." 4 Mitchell II, supra, at 226.

B

The United States raises three defenses against this conclusion, the first being that the property occupied by the Government is not trust corpus at all. It asserts that in the 1960 Act Congress specifically "carve[d] out of the trust" the right of the Federal Government to use the property for the Government's own purposes. Brief for United States 24-25 (emphasis deleted). According to the United States, this carve-out means that the 1960 Act created even less than the "bare trust" in Mitchell I. But this position is at odds with a natural reading of the 1960 Act. It provided that "Fort Apache" was subject to the trust; it did not read that the trust consisted of only the property not used by the Secretary. Nor is there any apparent reason to strain to avoid the straightforward reading; it makes sense to treat even the property used by the Government as trust property, since any use the Secretary would make of it would presumably be intended to redound to the benefit of the Tribe in some way.

Next, the Government contends that no intent to provide a damages remedy is fairly inferable, for the reason that "[t]here is not a word in the 1960 Act—the only substantive

4 The proper measure of damages is not before us. We mean to imply nothing about the relevance of any historic building or preservation standards. Neither do we address the significance of the fact that a trustee is generally indemnified for the cost of upkeep and maintenance. See Restatement (Second) of Trusts 244 (1957) ("The trustee is entitled to indemnity out of the trust estate for expenses properly incurred by him in the administration of the trust"). Nor do we reach the issue whether a rent-free occupant is obligated to supply funds to maintain the property it benefits from. See Restatement of Property 187, Comment b (1936) ("When the right of the owner of the future interest is that the owner of the estate for life shall do a given act, as for example, . . . make repairs . . . then this right is made effective through compelling by judicial action the specific doing of the act").

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