White Mountain Apache Tribe v. United States

• Decision Date: 16 May 2001
• Docket Number: PLAINTIFF-APPELLANT,DEFENDANT-APPELLEE,No. 00-5044,00-5044
• Citation: 249 F.3d 1364
• Parties: (Fed. Cir. 2001) WHITE MOUNTAIN APACHE TRIBE,, v. UNITED STATES,
• Court: U.S. Court of Appeals — Federal Circuit

Page 1364

249 F.3d 1364 (Fed. Cir. 2001)

WHITE MOUNTAIN APACHE TRIBE, PLAINTIFF-APPELLANT, v. UNITED STATES, DEFENDANT-APPELLEE.

No. 00-5044

United States Court of Appeals for the Federal Circuit

May 16, 2001

Appealed from: United States Court of Federal Claims, Judge Nancy Firestone

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Robert C. Brauchli, Brauchli & Brauchli, P.C., of Tucson, Arizona, argued for plaintiff-appellant.

Elizabeth Ann Peterson, Attorney, Appellate Section, Environment & Natural Resources Division, Department of Justice, of Washington, Dc, argued for defendant-appellee. With her on the brief was Lois J. Schiffer, Assistant Attorney General.

Before Mayer, Chief Judge, Michel and Dyk, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK. Dissenting Opinion filed by Chief Judge MAYER.

DECISION

This case presents the question of whether a 1960 Act of Congress, Pub. L. No. 86-392, 74 Stat. 8 (1960) (the "1960 Act"), obligates the United States to maintain or restore certain property and buildings held by the United States in trust for the White Mountain Apache Tribe (the "Tribe") ¹ so that the Tribe can maintain a suit for damages in the Court of Federal Claims. We hold that it does, though the obligation created is narrower than that claimed by the Tribe. We accordingly reverse and remand the decision of the Court of Federal Claims in White Mountain Apache Tribe v. United States, 46 Fed. Cl. 20 (1999), for further proceedings consistent with this opinion.

FACTUAL BACKGROUND

In 1870, the United States Army established a military post known as "Fort Apache" on approximately 7,500 acres of land within the borders of what later became the White Mountain Apache Tribe's reservation in Arizona. ² The Army operated Fort Apache as a military post until 1922, when Congress transferred control of the Fort to the Secretary of the Interior, and designated approximately 400 acres of the Fort for use as a boarding school for Native American children to fulfill certain unspecified treaty obligations of the United States. See 25 U.S.C. §§ 277 (1994). ³

In 1960, Congress passed the 1960 Act which declared the Fort 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 administrative or school purposes for as long as they are needed for that purpose." Pub. L. No. 86-392, 74 Stat. 8 (1960). Pursuant to that statute, the government allegedly controls and has the ability to use approximately thirty-five buildings on the site. The Court of Federal Claims found, and the parties do not dispute, that a small number of students are currently enrolled in the school, and that "the future of the school as a viable institution is apparently under review." White Mountain Apache Tribe, 46 Fed. Cl. at 22 n.2. According to the parties, the government has offered to terminate its trusteeship over an unspecified number of the buildings and to transfer control of them to the Tribe. The Tribe, however, has refused to accept that offer unless and until the government rehabilitates the buildings. The record does not reveal whether the United States has turned over any of the buildings to the Tribe.

At issue in this appeal is the government's obligation as trustee to maintain and restore those buildings, which include, inter alia, barracks constructed by the United States Army, the Native American boarding school and student dormitories, and various administrative buildings constructed by the Department of the Interior.

According to the Tribe, the government has had exclusive access to and control over those buildings and has allowed many of them to fall into disrepair. The Tribe alleges, and the government does not dispute, that the Department of the Interior has condemned and demolished several buildings deemed to be unsafe. The Tribe contends that it has repeatedly requested, to no avail, that the Secretary of the Interior and the Bureau of Indian Affairs maintain and restore the trust property. In May of 1993, the Tribe adopted a "master plan" ⁴ for the preservation and restoration of the Fort. In November of 1998, the Tribe commissioned an assessment of the trust property and obtained cost estimates for the repair and preservation of the buildings. According to that report, as of 1999, the total cost to rehabilitate the buildings amounted to approximately $14 million dollars. The government responds that it has indeed maintained and restored some of the thirty-five buildings, but acknowledges that others are dilapidated. ⁵

On March 19, 1999, the Tribe commenced a breach of trust action in the Court of Federal Claims seeking $14 million dollars in damages for the government's alleged breach of "its fiduciary duty to maintain, protect, repair and preserve the Tribe's trust corpus." The Tribe alleged that its claim arose under the 1960 Act, as well as the Snyder Act (codified at 25 U.S.C. §§ 13), the National Historic Preservation Act of 1966 (codified at 16 U.SC. §§ 470 et seq.) and a variety of other federal statutes and regulations.

The government filed a motion to dismiss for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction. In that motion, the government argued that neither the 1960 Act, nor any of the other statutes and regulations cited by the Tribe, imposed an obligation on the United States to maintain or restore the buildings held in trust for the Tribe, and that the Tribe had not stated a cognizable claim for money damages for the government's alleged mismanagement of that trust property. In addition, the government contended that the Tribe's breach of trust claim, even if otherwise valid, accrued outside the six-year statute of limitations period governing claims brought against the United States under 28 U.S.C. §§§§ 1491 and 1505.

The Court of Federal Claims agreed with the government that the Tribe had failed to prove the existence of a fiduciary obligation on the part of the United States that would, if breached, give rise to a claim for money damages, and dismissed the complaint for failure to state a claim. In reaching that decision, the court relied on two Supreme Court cases which establish the principles governing breach of trust claims by Native Americans against the United States, United States v. Mitchell, 445 U.S. 535 (1980) ("Mitchell I"), and United States v. Mitchell, 463 U.S. 206 (1983) ("Mitchell II"). ⁶ The Court of Federal Claims found that the language of the 1960 Act "creates a limited, or bare trust relationship between the government and the Tribe," akin to the trust relationship created by the General Allotment Act of 1887, 24 Stat. 388, codified at 25 U.S.C. §§ 331 et seq., which was found in Mitchell I not to impose fiduciary duties on the United States. White Mountain Apache Tribe, 46 Fed. Cl. at 26. The court further noted that unlike the statutes and regulations found to create fiduciary duties in Mitchell II, the 1960 Act "does not direct the government to manage the Fort Apache site for the benefit of the Tribe." Id. at 26.

The court also rejected the Tribe's argument that, even if the government had no fiduciary obligation to maintain the property for the benefit of the Tribe, the government was liable for its failure to prevent deterioration of the property under a "permissive waste" theory, by analogy to property law. (Under this theory, as articulated by the Tribe, the United States, as the current tenant of the trust property, would be required to take reasonable steps to prevent deterioration of the property in anticipation of its transfer to the Tribe.) The court disagreed, noting that "the difficulty with plaintiff's argument is that an action for permissive waste, even if proper, does not ordinarily give rise to a money claim." Id. at 28. Referencing a secondary source that summarized sections 188, 189 and 195 of the Restatement (First) of Property (1936), the court observed that "[t]he law on `permissive waste' provides that the appropriate remedy for permissive waste is generally an injunction," an equitable remedy that the Court of Federal Claims lacks jurisdiction to award. Id. But cf. Bobula v. United States Dep't of Justice, 970 F.2d 854, 858 (Fed. Cir. 1992) (noting that equitable relief is sometimes available in a suit brought under the Tucker Act, 28 U.S.C. §§ 1491, when that relief "is incidental to and collateral to a claim for money damages"). In short, the court concluded that it lacked jurisdiction over the Tribe's claim and accordingly dismissed the action for failure to state a claim upon which relief may be granted. The court did not reach the government's statute of limitations argument. This timely appeal followed.

DISCUSSION

I.

The question before us is whether the Court of Federal Claims erred in dismissing this breach of trust claim against the United States for failure to state a claim upon which relief may be granted. We review that decision without deference. First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1286-87 (Fed. Cir. 1999). We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1295(a)(3) (1994).

II.

The Tucker Act gives the Court of Federal Claims jurisdiction over broad categories of claims against the United States and constitutes a waiver of sovereign immunity as to those claims. 28 U.S.C. §§ 1491 (1994); Mitchell II, 463 U.S. at 212. A companion statute, the Indian Tucker Act, further confers jurisdiction on the Court of Federal Claims to hear any claim brought by a Native American tribe against the United States that "is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe." 28 U.S.C. §§ 1505. Although the Tribe premised jurisdiction in the Court of Federal...