- The Washington Times - Tuesday, March 4, 2003

WASHINGTON, March 4 (UPI) — The Supreme Court ruled 5-4 Tuesday that the federal government can be held liable for conditions at Fort Apache, Ariz.

The ruling was a victory for the White Mountain Apache, who want to rehabilitate the site.

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The decision also came along ideological lines, with moderate conservative Justice Sandra Day O'Connor joining the court's four liberals to form a majority.

Writing for that narrow majority, Justice David Souter cited Supreme Court precedent, saying one of the primary duties of a trustee is to preserve assets, and "it naturally follows that the government should be liable in damages for the breach of its fiduciary duties."

The Apaches want to preserve the historic buildings on the fort. Bringing those buildings up to standards could cost about $14 million.

The Army established Fort Apache in 1870 on 7,500 acres inside what later became the White Mountain Apache Tribe's reservation. One of the most famous posts of the U.S. Cavalry, Fort Apache was a military facility until Congress transferred ownership from the Army to the Interior Department in 1922.

However, Congress set aside 400 acres at the fort for use as a boarding school for tribal children, part of a treaty obligation.

In 1960, Congress passed an act which declared the fort to be held in trust by the United States for the White Mountain Apaches, with the condition that the Interior Department could use an part of the land and any improvements for administrative or school purposes.

As later understood, the act meant that the U.S. government could control and use about 35 buildings on the fort. A small number of students continue to use the school.

The disputed began when the government and the tribe tried to negotiate the future of the fort.

The government attempted to end its trusteeship over an unspecified number of the buildings on fort land and transfer control to the Apaches.

The Apaches told the government that was fine, just rehabilitate the buildings first, many of which are a mess. Some have even been condemned as unsafe.

In fact, the tribe adopted a master plan to preserve the fort in 1993, and commissioned an assessment of the property. That assessment resulted in the $14 million figure.

The tribe filed suit in March 1999 in the Court of Federal Claims for the $14 million, alleging that the government violated its duty as trustee of the property by failing to keep it in repair.

The Court of Federal Claims dismissed the case, saying the tribe had failed to prove an obligation on the part of the government to maintain the property.

However, the U.S. Court of Appeals for the Federal Circuit in Washington reversed. The appeals court ruled that the obligation exists, though on narrow grounds, and sent the case back down for trial.

Before a trial could begin, the government asked the Supreme Court for review. The justices heard argument in December.

Tuesday, the court majority upheld the lower court and sent the case back down for a new hearing based on the majority opinion.

Justice Clarence Thomas dissented, and was joined by fellow conservatives, Chief Justice William Rehnquist and Justice Antonin Scalia, and moderate Justice Anthony Kennedy.

Thomas said the majority may be able to find a "fair inference" in common-law trust principles that the government can be held liable, but nothing in the actual language of the 1960 act — making the United States the trustee for the fort — can be interpreted as mandating compensation by the government for damages to the property.

(No. 01-1067, USA vs. White Mountain Apache.)

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