dissenting.
I would affirm, both because the 1960 Act did not impose a fiduciary duty on the government and because the Tribe does not hold an indefeasibly vested future interest in the Fort Apache land and buildings. In United States v. Mitchell, 445 U.S. 535, 542, 546, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (Mitchell I), the Supreme Court held that statutes and regulations that create only a limited or “bare” trust relationship between the United States and the Tribes do not impose fiduciary obligations which would give rise to money damages. However, in United States v. Mitchell, 463 U.S. 206, 224, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (.Mitchell II), the Court found that a fiduciary obligation existed when the statute or regulations give the government full responsibility for managing Indian resources and land for the benefit of the Indians. The statutes and regulations define the scope of the fiduciary obligation. Id. We held in Brown v. United States, 86 F.3d 1554, 1560 (Fed.Cir.1996), that the fiduciary duty need not be explicit in the statute or regulation, but the government must take on or have control or supervision of tribal monies or property.
In this case, the 1960 Act, which created the trust, reserved to the government the right to use any part of the land and improvements for administrative or school purposes for as long as they are needed for those purposes. This provision limits the government’s obligation to the Tribe and creates a bare trust relationship similar to the General Allotment Act considered in Mitchell I. Nothing in the 1960 Act imposes a fiduciary responsibility to manage the fort for the benefit of the Tribe and, in fact, it specifically carves the government’s right to unrestricted use for the specified purposes out of the trust. Although the school is for the benefit of the Tribe, the 1960 Act expressly permits, but does not require, the government to use the fort as an Indian school. The use of the phrase “for as long as they are needed,” far from expressing a fiduciary obligation, vests discretion in the Secretary of the Interior to determine how long to operate the Indian school. Because the subject matter of the trust excluded the government’s use privilege from the start, it has no fiduciary obligation to maintain the land and improvements for the Tribe that could lead to money damages.
Accordingly, there should be no need to address whether the future interest held by the Tribe is vested or contingent. In reaching the issue, however, the court has misconstrued the nature of the trust and improvidently held that “[t]here is nothing contingent about the Tribe’s future interest in the trust property.” White Mountain Apache Tribe v. United States, ante at 25. In fact, the government has reserved the right to use the trust property “for as long as [it is] needed” for school or administrative purposes. Nothing in the grant precludes the possibility that it will be needed in perpetuity for those purposes; there is no certainty that the Tribe’s future interest will ever vest. It is therefore contingent and, as the court aptly points out, the owner of a contingent future interest has no right to sue for money damages for permissive waste. Id.
The government argued that the Tribe’s future interest was contingent and that the common law of property as reflected in sections 188, 189, and 195 of the Restatement (First) of the Law of Property bars the Tribe’s claim for monetary damages. The court does not disagree that money damages would be barred if the Tribe’s future interest were contingent; it merely asserts that it is not. Therein lies the error. As the court said,
Section 188 provides: “When a present estate for life precedes a future interest *1385in fee simple which is subject to a condition precedent, or which is vested but defeasible either in whole or in part upon an event the occurrence of which is not improbable, then the owner of such future interest, in a judicial proceeding brought solely in his behalf, cannot recover damages immediately payable to himself for any act or omission of the owner of the estate for life.” Restatement (First) of Law of Property § 188 (1936).
White Mountain Apache Tribe, ante at 24 n. 14. The court goes on to note that there must be an uncertainty as to the future interest for this rule to apply, and makes the conclusory statement that there is “no ‘uncertainty as to the future interest’ of the Tribe in the trust property.” Id. Contrary to this assertion, there is a condition precedent to the vesting of the Tribe’s future interest, namely that the government no longer needs to use the property for school or administrative purposes. Until the Secretary of the Interior determines that the property is no longer needed for school or administrative purposes, the condition precedent will not occur, and the Tribe’s interest will not vest. Because there is nothing in the 1960 Act that prevents the government from continuing to use the property for school or administrative purposes indefinitely, there is no guarantee that the condition precedent will ever be met and the Tribe’s future interest will ever vest. This precludes its claim for money damages and is an independent ground on which to affirm the judgment of the Court of Federal Claims.