United States v. White Mountain Apache Tribe

Supreme Court Decides Question involving Federal Immunity and the Little Tucker Act

Matthew L.M. Fletcher

Here is today’s opinion in United States v. Bormes.

An excerpt from Justice Scalia’s unanimous opinion:

[The Federal Circuit] distorted our case law in applying to FCRA the immunity-waiver standard we expressed in White Mountain Apache Tribe, 537 U. S., at 472: whether the statute “‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” 626 F. 3d, at 578. That is the test for determining whether a statute that imposes an obligation but does not provide the elements of a cause of action qualifies for suit under the Tucker Act—more specifically, whether the failure to perform an obligation undoubtedly imposed on the Federal Government creates a right to monetary relief. See White Mountain Apache Tribe, supra; Mitchell II, 463 U. S. 206. That test is not relevant when a “mandate of compensation” is contained in a statute that provides a detailed judicial remedy against those who are subject to its requirements. FCRA is such a statute. By using the “fair interpretation” test to determine whether FCRA’s civil liability provisions apply to the United States, the Federal Circuit directed the test to a purpose for which it was not designed and leapfrogged the threshold concern that the Tucker Act cannot be superimposed on an existing remedial scheme.

Justice Thomas’ Indian Law Vision

Matthew L.M. Fletcher7 Comments

Much is being made of Justice Thomas as a rising leader in the Roberts Court, which quietly says a great deal about the incredible conservatism of the Court right now. Justice Thomas views on gun control, which former Chief Justice Burger would have labeled “fraudulent,” are now the law. Jefffrey Toobin’s New Yorker piece, profiled at SBM blog, notes that Thomas’s dissenting and concurring opinions long have espoused well-nigh radical notions of constitutional law, and are now being vindicated one after the other.

Justice Thomas’s radical vision of the law also has touched Indian law. In particular, Thomas has suggested two major changes to Indian law jurisprudence.

First, in White Mountain Apache, he wrote that the trust relationship was more properly viewed as a “guardian-ward relationship,” a view adopted to some extent by the Jicarilla Court just a few months ago:

The Court of Claims has observed that the relationship between the United States and Indians is not governed by ordinary trust principles: “The general relationship between the United States and the Indian tribes is not comparable to a private trust relationship. When the source of substantive law intended and recognized only the general, or bare, trust relationship, fiduciary obligations applicable to private trustees are not imposed on the United States. Rather, the general relationship between Indian tribes and [the United States] traditionally has been understood to be in the nature of a guardian-ward relationship. A guardianship is not a trust. The duties of a trustee are more intensive than the duties of some other fiduciaries.” Cherokee Nation of Oklahoma v. United States, 21 Cl.Ct. 565, 573 (1990) (citations and internal quotation marks omitted).

One can only wonder what Justice Thomas would have done if Cobell had fallen into the Court’s lap. Today’s posting on the lower court’s sarcastic rejection of the government’s position on the merits of the Jicarilla trust claim suggests the DOJ and DOI are more than willing to offer up an argument to return the trust relationship to the Lone Wolf v. Hitchcock era.

Second, Justice Thomas has stated an interest in extending his onslaught on the commerce clause to the Indian Commerce Clause context. In United States v. Lara, he linked Lopez and Morrison to the Indian Commerce Clause: Continue reading →