Court to decide limits of trust duty

TUESDAY, APRIL 23, 2002

The Supreme Court took its first Indian law case of the term on Monday, agreeing to resolve a dispute over an old Army fort housing a tribal school and other crumbling buildings.

Bringing new meaning to President Bush's "leave no child behind" policy, the Justices are being asked to overturn a ruling which said the federal government has a responsibility to repair about 30 buildings on the former Fort Apache Military Reservation in Arizona. A federal appeals court in May 2001 found that the Department of Interior, as trustee, owes it to the White Mountain Apache Tribe to keep the buildings in reasonable shape.

"In short, the government here has a fiduciary obligation to act reasonably to maintain and repair the trust property," the court wrote in a 2-1 decision.

But the Bush administration says it only has a limited duty. In recent court filings, Solicitor Ted Olson challenged the Federal Circuit Court of Appeals' decision on a number of grounds, including the potential for tribes and individual Indians to file lawsuits on the 56 million acres of land held in trust.

Robert Brauchli, an attorney representing the tribe, disputed the charges. In an interview conducted prior to the announcement of the case being accepted, he said it is extremely difficult for Indian beneficiaries to prove they are owed damages.

"Very few cases have every resulted in any kind of favorable judgment to a tribe," he said. "You have to really show amount of control. There's lots of barriers and obstacles and intense fact-finding that we have to do."

"It's just not that easy," he said.

In 1999, the tribe filed a $14 million claim against the government. The amount is based on bringing the buildings up to the Interior's building code.

The exact dollar amount has not been decided, since the case proceeded on other issues. A statute of limitations argument government attorneys have raised remains unanswered.

But if the Supreme Court sides with the Bush administration, the tribe has to rely on the political and funding whims of the government if it wants to see the site repaired. In fiscal year 2003, the Theodore Roosevelt School -- one of the worst-performing in Indian Country -- will receive about $1 million in funds and two roofs will be replaced.

The tribe hopes other buildings can be rehabilitated and used for historic and tourism purposes. Fort Apache is on the National Historic Register.

A date has not been set for oral arguments.

Timeline of Events:
1871 - Fort Apache Reservation established by executive order of President Ulysses S. Grant.
1877 - Fort Apache Military Reservation created by executive order within reservation boundaries. Fort is approximately 7,500 acres.
1922 - Fort retired, Theodore Roosevelt School established.
1960 - Congress passes law holding fort in trust for 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."
1976 - About 288 acres of the site, including the school, are put on the National Register of Historic Places.
March 1999 - Tribe files $14 million suit to repair buildings.
November 1999 - Federal court dismisses claim based on government claim of no trust duty.
May 2001 - Federal appeals court reverses in 2-1 decision, orders lower court to resolve outstanding issues.
January 2002 - Bush administration files appeal.
May 2002 - Supreme Court grants petition for writ of certiorari.

Relevant Laws:
Lands Held in Trust for the White Mountain Apache Tribe (Pub. L. 86-392, 1960)

Related Documents:
Supreme Court Docket Sheet: No. 01-1067 | DOJ Response Brief (April 5, 2002) | DOJ Petition Brief (January 15, 2002)

Related Decisions:
White Mountain Apache Tribe v. US, No 00-5044 (Fed Cir. May 16, 2001)

Only on Indianz.Com:
Supreme Court considering Indian cases (2/19)
Apache Tribe wins trust case appeal (5/17)

Relevant Links:
White Mountain Apache Tribe - http://www.wmat.nsn.us

Related Stories:
Supreme Court taking on trust (4/22)
Leave no Apache school behind (3/29)