United States v. White Mountain Apache Tribe, 537 U.S. 465, 22 (2003)

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Thomas, J., dissenting

ment," and under which the United States assumed "full responsibility to manage Indian resources and land for the benefit of the Indians." 463 U. S., at 220, 222, 224 (emphasis added). Here, by contrast, there are no management duties set forth in any "fundamental document," and thus the United States has the barest degree of control over the Tribe's property. And, unlike Mitchell II, the bare control that is exercised by the United States over the property does not inure to the benefit of the Indians. Supra, at 484. In my view, this is more than sufficient to distinguish this case from Mitchell II.

Moreover, even assuming that Mitchell II can be read to support the proposition that mere factual control over property is sufficient to create compensable trust duties (which it cannot), the Court has never provided any guidance on the nature and scope of such duties. And, in any event, the Court has never before held that "control" alone can give rise to, as the majority puts it, the specific duty to "preserve the property." Ante, at 475. Indeed, had Congress wished to create such a duty, it could have done so expressly in the 1960 Act. Its failure to follow that course strongly suggests that Congress did not intend to create a compensable trust relationship between the United States and the Tribe.

In addition, the Court's focus on control has now rendered the inquiry open-ended, with questions of jurisdiction determined by murky principles of the common law of trusts,2 and

2 Even assuming the common law of trusts is relevant to determining whether a claim of money damages exists against the United States, it is well established that a trustee is not ultimately liable for the costs of upkeep and maintenance of the trust property. 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"); 3A A. Scott & W. Fratcher, The Law of Trusts 244, p. 325 (4th ed. 1988) ("[The trustee] is entitled to indemnity for liabilities properly incurred for the payment of taxes, for repairs, for improvements . . ."). Besides making the bald assertion that money damages "naturally follo[w]" from the existence of a trust duty, ante, at 476 (internal quotation

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