United States v. White Mountain Apache Tribe, 537 U.S. 465, 20 (2003)

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Thomas, J., dissenting

Mitchell, 463 U. S. 206 (1983) (Mitchell II), the 1960 Act does not "establish . . . 'comprehensive' responsibilities of the Federal Government in managing the" Fort Apache property. Id., at 222. Because there is nothing in the statute that "clearly establish[es] fiduciary obligations of the Government in the management and operation of Indian lands," the 1960 Act creates only a "bare trust." Id., at 226.

In addition, unlike the statutes and regulations at issue in Mitchell I and Mitchell II, "[n]othing in the 1960 Act imposes a fiduciary responsibility to manage the fort for the benefit of the Tribe and, in fact, it specifically carves the govern-ment's right to unrestricted use for the specified purposes out of the trust." 249 F. 3d, at 1384 (Mayer, C. J., dissenting); see also id., at 1375 ("It is undisputed that the 1960 Act contains no . . . requirement" for the United States "to manage the trust corpus for the benefit of the beneficiaries, i. e., the Native Americans"). The 1960 Act authorizes 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." 74 Stat. 8. The Government's use of the land does not have to inure to the benefit of the Indians. Nor is there any requirement that the United States cede control over the property now or in the future. Thus, if anything, there is less evidence of a fiduciary relationship in the 1960 Act than there was in the General Allotment Act at issue in Mitchell I.

If Congress intended to create a compensable trust relationship between the United States and the Tribe with respect to the Fort Apache property, it provided no indication to this effect in the text of the 1960 Act. Accordingly, I would hold that the 1960 Act created only a "bare trust" between the United States and the Tribe.


In concluding otherwise, the majority gives far too much weight to the Government's factual "control" over the Fort

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