phoenix indian school congress mandated indian education trust fund payments to arizona indian tribes on page twenty nine of the blue group r t c argues that in the government's lawsuit against act or otherwise supporting the imposition of a duty upon the government to collect quote all payments from collier and if and how does any such duty relate to the government's duty to hold in trust and even though the statute says that collier shall make those that those are to be made to the united states so there in lies the duty to collect the and your honor asked about the duty to secure which is of course in section four of five c two which is honor the collection duty would be a little bit more implicit but it could be from as i said the statute requires collier to make the payments to the united states that's the implicit duty to collect the security duty as far more expressive as your honor so i never stand that but i'm that that's why i'm concerned about the st the the collection going well and as your honor said the united states could have chosen to collect all the payments from collier what the united states did he said the collyer is what the united states did the soviet collier but that doesn't in itself eliminate or reduce the statutory duties on the united see it is true that at the end of the day after the lawsuit was filed and there was a supplement the total amount of payments due from collier were not recovered but what is your purse support for the proposition that the never even sought to recover the total payments because it yes your honor because in the u s versus collyer the united states was of the view that it needed to enforce th contractual terms that it agreed to with collier to supplement the security for the payments that collier had not made up until the point in time of the settlement sopra the default to the it and other words the united states was of the view that collier only zero did what was due under contractual or that collier was only required supple of the security up until the point of default and  the settlement in the case the us did not seek to collect the payments the full thirty years of payments the united states is view is that whenever color defaults that the default eliminates the remaining unpaid required payments that's their view so that's what they sought to collect and that fell short and the united states didn't have the security to make the trust funds whole with the required thirty annual and single final payments under the act and would add a response to the argument that with respect to the security you would already filed a lawsuit much earlier saying the security is not good enough and the court had ruled and said there was no there was no jurisdiction for the court to address that fact yes your honor the terms of the security at that of the security that the us agreed to with collier did fall short of what the act required and the inner tribal council of arizona knew that and was very concerned the differences as your honor said those claims were precluded from being heard by the district court but that doesn't preclude claims for damages against the united states as the united states told the court the district court in lieu han in part to get the result that it got the claims for damages are not precluded in the court of federal claims because they are a different cause of action there was no preclusion under the law and that's the mostly in the crawl cases that site and there was no collateral stop starting to make payments as long as collier was making payments there was the possibility that the united states correctly understood the act and could correctly secure all the payments that were required under the act they have the tools to do that when it be claimed clear that they didn't that occurred after collier stopped paying in twenty elaborate and when the united states disclosed to i t c a in march of two thousand and thirteen that collier had to fault it and the security was insufficient those are the events that fixed the liability of the united states as long as collier was paying it didn't really matter but the united states never disclosed to actual level of the security but there was in the contract that the fact that the united states agreed to release liens yes your honor that is true but there was no in fact the united states completely disavows that i had any role in the go shading the documents or any beneficial interest in the things that were negotiated in those documents the united states did not of its own volition provide information to i because the united states chose real property and real property interests as the security required by congress for these trust fund payments the valuation was always fluctuating the united states did not hold liquid security it held real property and in phoenix that was a volatile thing to do and so but the united states never did anything it could have required under its own terms it could have required collyer to supplement the security in one thousand nine hundred and ninety eight when it did the st thing release it could have required collyer to supplement the security in two thousand and seven it could have required cholera to supplement the security in two thousand and eight when there was a major economic downturn or it diminished depleted the value of the security as collier knew himself when he tendered the property and when he defaulted in coll words and only collier ever did appraisals on these properties it was six million dollars that's why the united states turned that down and sued collier for a little bit more but we're still short this is a very unique act of congress the united states at the height has operated three hundred over three hundred and fifty indian boarding schools in this country never before with the closure of one of these schools has congress turned the value of the property underlying the school into mandatory trust fund payments for indian education that is the testament to how congress recognized the value of this property which as the general accounting office stated was quite possibly the most valuable piece of property in the late one thousand nine hundred and eighty s in the western united states and congress recognized that and turned it into this very specific payment and security scheme that is unlike many other statutes although it's close your mother and for your own in your those and like in white mountain apache which is a coast comparable statute hold in trust the united states is liable for breach of those fiduciary duties which congress put full control in the united states to comply with and they chose not to that's why i'm here how much would have been the appropriate security under the act the answer that your honor is whatever it takes to secure any and all unpaid remaining payments at any time now the payments have one hundred and thirty percent the united yes your honor the united states itself realized that it needed to enhance the security requirements because it agreed to those lean releases again on solid will fluctuate in value real property interests so yes they enhance their own requirement and still didn't still didn't need ok they saved the rest a i guess that's it is a loop it's not clear when when we actually learned that it was we go they sent another letter to the united states at the time that the notified that they were no longer to make any payments in and twelve and they notified at that time that the value of the property and because of gone down so much that it was only worth six or seven million dollars and at that time obviously that is under collateralize but the way th e lateral was sent forth do you agree that the united states was in a fiduciary relationship the united only fiduciary relationship the united states had was to collect the payments made and eighty eight act that the united states of tain or maintain any level of particular of security the congress left it up to the secretary how much security would be so i education it also had the act require that the property be held in trust for the benefit of the i can see no the act there's no so there's no provision that requires the property it's simply that whatever security the united states obtained in the trust fund payment or with agreement that it had with cali or there's a requirement that it hold that security in trust and there's no allegation that the united states didn't hold the security to tame the dispute is about whether it obtained enough security whether the again the target should be thirty four million nine hundred thousand the principle which as we learned the congress was in operating in a vacuum they had a c b l analysis which shows if you get federal property this was not i think that's one of the biggest distinction between this and other in the trust case is this was entirely federal property and the only amount of money that was going to id ca was dollars the indian school property the congress did not identify that eighty million dollars should be put into trust for so it wasn't the entire value of what was what was put into trust was either thirty four point nine million dollars upfront or thirty years of payments plus thirty four dollars not point one million dollars so i mean really what was supposed to be the security was supposed to be the one hundred and thirty percent and so my question is at the time you released the liens would seem like  sort of a silly thing to do frankly but why release liens on i'm very valuable property in downtown phoenix but at the time you released the liens did the government confirm that there was enough security to cover one hundred and thirty percent of the value of the payments yes well that's not what the one hundred and thirty percent was it was that's again it gets back to what the target is there well there's two things sort of tied up in that question one is it wasn't as it was a question of silly or not the united states was obligated to do it under the so if they if they were behind on any payment you had that in plus unpaid principal which is thirty four million nine hundred thousand dollars and then you subtract out the value of whatever the property is whatever liens there are and use a practice out the annuity so the question is if you're over that target and again it's one hundred and thirty percent of that is with it then you collier would have to if it falls below that level collier had to use collateral to get the value back up so at the time of the release of the liens in one thousand nine hundred and eight in two thousand and seven there was no evidence that the that the value of the security had fallen below the level that was agreed to with the trust fund payment agreement the dispute is about whether the target was it was proper not that's what i can say alleges that the united states had target this one hundred dollars if you do the math it's about one hundred and twenty three million dollars almost two hundred and twenty four million dollars because that's thirty years of payments plus the thirty four  have it's a classic present value analysis i mean we are saying that it that it's thirty four million but you're not going to get it for thirty years so of course there has to be other value because thirty four million can't be the bogey if you're we have to wait thirty years for and bear collyer defaults on day zero used you will have the exact same amount thirty years later so we still haven't gotten to the end of the thirty years and the only reason we're having this dispute is because interest rates went down over the last since  remaining and phoenix indian school property was twenty five million dollars but the g s a sold it breaking point well i that's another example of what happens with security when you have obviously that at the time you know as a trustee you can't all you can do is to have an appraisal and they and that gives you the value of the property did you make a rule sixty b motion in the district court in arizona to reopen based on mutual history well there wouldn't be wrong there wouldn't have been because the case was resolved by a settlement we had a at the time in arizona we used the formula from the contract which is one hundred dollars we were dropped we were filing suit to require a supplement of collateral and so at the time all we can you do is anytime you have land you use an appraisal and that's the best estimate of the value obviously once you actually have a sale later the market value can be different so there's a an appraisal  parent color in the united states that comes up with twenty five million and then when g s a actually sells it it only gets eighteen and a half there is no case law that would make the united states a guarantor for the value of that of the fallen value of the actually is a an obligation in the statute and i think that's where the place to start is actually find any provision in there is no statutory provision that requires the united states to obtain or maintain any level of of security in there is of the trustee if the value ceded one hundred percent who negotiated that well i that was a negotiation back and forth between cali or the united states it was it was but it's you have to if you're going to look at the release level amount you have to also look at it in conjunction with the maintenance of supplemental collateral and six point three that's what the united states that also is essentially a form of security that the united states has which is if the value of the security again were talking about land if the value of the land goes down the united you're if you're holding it in price how do you release the liens on on that downtown development interest i know you're soon well we were happy but it's not oh we were having  that the the the huge is to look back at what the languages and if you're going to find a fiduciary responsibility d the only place you can find it is in the provision that says hold in trust the security provided in the trust fund payment agreement again trust fund payment agreement did not exist at the time that that language was put into the statute so the united states because the statute left the entirely up to the secretary the what the level of security would be and so then the unit that is part of the security that the united states would go she added it's both this release level amount it's the obligation to supplement it but it's also a you must release the liens if it is at a certain level so that is all part of the terms of the trust fund payment remit which if you again do find that that that particular language that says hold in trust in accordance if you can't leave out if you'll notice in the briefing the lead into that sentence is left out of all the times that i  quote the statute which is in accordance with the trust fund payment remit so the act was not just hold security and nebulous it was whole security and it's in accordance with the trust one payment and i'm ok and under that trust and came to me i'm still having a hard time whose obligation was it to monitor the level of the security of baron collier the bank caller had an obligation to monitor and if they didn't which as it turned out they didn't hear when they default the united states can then sue and get the collateral back up to the level that had been a bit like the fact checking right i mean they got to they got to pay attention they were supposed to monitor it and while it just kept  the government was requiring any kind of reports or anything well the the government has the benefit of being able to sue and require them to add government backed securities to bring the level back up a long time before they found to right know the united obviously can can fluctuate and even as here you can have an appraisal and then when the actual market value when it's sold it can be less so the key was having this got this this i mean it's a collateral provision that allowed the united states to then get require color to two to supplement to bring it back up the dispute again is not about the the issue of whether we can schedule require supplemental security the main dispute here is about what was it should have been the original target should it have been the principal or should it have been one hundred dollars to four dollars times that one hundred and twenty three million dollars for how much security to go should and congress left it up to the secretary as to what  a level would be negotiated for and and then required that the united states hold whatever security and go shoot it hold it and trust that the united states acquire that program original  interests that were involved there in this land exchange there was a veterans hospital it was going to be used on the site and that this was the only statute involved here that could possibly  do you know they answer their question your honor into the when there was going to be an indian school was originally going to be a fort dal another former military site the city of phoenix wanted the school more centrally located because of a labor source that the indian children would provide so the city of phoenix sole the land to the united states and i also wanted to clarify in response to your honor's question in our complaint which i'm sorry it just flipped back from it it's in the appendix at seven to ten our complaint that paragraph one hundred and eighty two the citation to when the united states now admits it knew the security was insufficient as early as two thousand and seven  the secretary of the treasury holding in trust ok the in accordance with the trust fund payment agreement so the trust fund payment agreement had to comply with the act the the act does require a trust fund payment with a thirty year option but that trust fund payment had to comply with the act the act reflects congress understanding that it knew collyer could default at any time under the thirty year option be the government as it was required to do under the act consulted with i t c in the navajo nation regarding the payment option beyond that the government was in full control and negotiated the terms with collier including no personal recourse which made it all the more important that the security at the united states under this act was required to hold met the obligations of the acted under the trust fund payment agreement do you agree that it was coll obligation to monitor the security yes your honor i agree that that is a contractual term between the united states and collier and i think that was part of the the court's opinion in the district court in the u s because your case that it i don't think that the court there got into it i don't think that under this act there's any authority for the united states to assign any of the security duty to collier but to the extent was a valid assignment it just doesn't relieve the united states of its statutory obligations to hold the security the the required level of security interest so that any time during that thirty years that's all they had to do what to response to the statement that  really a it depends on what you what your target is so that in other words the government says all they have to do is have security for thirty four million dollars not for thirty four million dollars plus the interest payments you're out of that is absolutely incorrect under the act they had to have security for all thirty annual payments and the final payment that's the payment scheme of this act and all the united states had to do was secure it that's all they had to do and they didn't i see my time is almost