United States v. White Mountain Apache Tribe, 537 U.S. 465, 21 (2003)

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Cite as: 537 U. S. 465 (2003)

Thomas, J., dissenting

Apache property, which is all that distinguishes this case from Mitchell I. The majority holds that the United States "has obtained control at least as plenary as its authority over the timber in Mitchell II." Ante, at 475. This analysis, however, "misconstrues . . . Mitchell II by focusing on the extent rather than the nature of control necessary to establish a fiduciary relationship." 46 Fed. Cl. 20, 27 (1999). The "timber management statutes . . . and the regulations promulgated thereunder," Mitchell II, 463 U. S., at 222 (emphasis added), are what led the Court to conclude that there was "pervasive federal control" in the "area of timber sales and timber management," id., at 225, n. 29. But, until now, the Court has never held the United States liable for money damages under the Tucker Act or Indian Tucker Act based on notions of factual control that have no foundation in the actual text of the relevant statutes.

Respondent argues that Mitchell II raised control to talis-manic significance in our Indian Tucker Act jurisprudence. To be sure, the Court did state:

"[A] fiduciary relationship necessarily arises when the Government assumes such elaborate control over forests and properties belonging to the Indians. . . . '[W]here the Federal Government takes on or has control or supervision over tribal monies or properties . . . (unless Congress has provided otherwise) even though nothing is said expressly in the authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection.' " Id., at 225 (quoting Navajo Tribe v. United States, 224 Ct. Cl. 171, 183, 624 F. 2d 981, 987 (1980)).

However, this case does not involve the level of "elaborate control over" the Tribe's property that the Court found sufficient to create a compensable trust duty in Mitchell II. Mitchell II involved a "comprehensive" regulatory scheme that "addressed virtually every aspect of forest manage-


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