Here is the order:
Some of the language here is striking, with the court apoplectic about the government’s continued demand that the court recognize its view that the trust responsibility be winnowed down to almost nothing:
Defendant would have this court blithely accept what so many courts have rejected – that for the breach of a fiduciary duty to be actionable in this court, that duty must be spelled out, in no uncertain terms, in a statute or regulation. But to conclude this, this court would have to perform a logic-defying feat of legal gymnastics.
That routine would commence with a full jurisprudential gainer – a twisting, backwards maneuver that would allow the court to ignore cases like White Mountain Apache and Mitchell II that have relied upon the common law to map the scope of enforceable fiduciary duties established by statutes and regulations. The court would then need to vault over Cheyenne-Arapaho and a soaring pyramid of other precedents, all of which have found defendant’s argument wanting. Next, the court would be called upon to handspring to the conclusion that Congress’ repeated legislative efforts to ensure the safe investment of tribal funds were mostly for naught – because, if defendant is correct, the provisions enacted were generally not perspicuous enough to create enforceable duties and, even where specific enough to do so, left interstices in which defendant could range freely. Indeed, while egging the court on, defendant never quite comes to grip with the fact that if the government’s fiduciary duties are limited to the plain dictates of the statutes themselves, such duties are not really “fiduciary” duties at all. See Varity Corp. v. Howe, 516 U.S. 489, 504 (1996) (“[i]f the fiduciary duty applied to nothing more than activities already controlled by other specific legal duties, it would serve no purpose”). Taken to its logical dismount, defendant’s view of the controlling statutes would not only defeat the twin claims at issue, but virtually all the investment claims found in the tribal trust cases, few of which invoke haec verba specific language in a statute or regulation. Were the court convinced even to attempt this tumbling run, it almost certainly would end up flat on its back and thereby garner from the three judges reviewing its efforts a combined score of “zero” – not coincidentally, precisely the number of decisions that have adopted defendant’s position.