[ Souter ]
[ Ginsburg ]
[ Thomas ]
UNITED STATES, PETITIONER v. WHITE
MOUNTAIN APACHE TRIBE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[March 4, 2003]
Justice Ginsburg, with whom Justice Breyer joins, concurring.
I join the Courts opinion, satisfied that it is not inconsistent with the opinion I wrote for the Court in United States v. Navajo Nation, post, p. __.
Both Navajo and the instant case are guided by United States v. Mitchell, 445 U.S. 535 (1980) (Mitchell I), and United States v. Mitchell, 463 U.S. 206 (1983) (Mitchell II). While Navajo is properly aligned with Mitchell I, this case is properly ranked with Mitchell II. Mitchell I and Mitchell II, as Navajo explains, instruct that [t]o state a claim cognizable under the Indian Tucker Act
, a Tribe must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties. Navajo, post, at __ (slip op., at 15). If the Tribe satisfies that threshold, the court must then determine whether the relevant source of substantive law can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].
In this case, the threshold set by the Mitchell cases is met. The 1960 Act, Pub Law 86392, 74 Stat. 8, provides that Fort Apache shall be held by the United States in trust for the White Mountain Apache Tribe and, at the same time, authorizes the Government to use and occupy the fort. Ante, at 12. Thus, as the Court here observes, the Act expressly and without qualification employs a term of art (trust) commonly understood to entail certain fiduciary obligations, see ante, at 79, and invest[s] the United States with discretionary authority to make direct use of portions of the trust corpus, ante, at 8; cf. Navajo, post, at __ (slip op., at 17) (no provision of the IMLA or its regulations contains any trust language with respect to coal leasing). Further, as the Court describes, the Tribe tenably maintains that the Government has availed itself of its option to exercis[e] daily supervision . . . [and] enjo[y] daily occupation of the trust corpus, ante, at 8, but has done so in a manner irreconcilable with its caretaker obligations. The dispositive question, accordingly, is whether the 1960 measure, in placing property in trust and simultaneously providing for the Government-trustees use and occupancy, is fairly interpreted to mandate compensation for the harm caused by maladministration of the property.
Navajo, in contrast, turns on the threshold question whether the Indian Mineral Leasing Act (IMLA) and its regulations impose any concrete substantive obligations, fiduciary or otherwise, on the Government. Navajo answers that question in the negative. The controversy falls within Mitchell Is domain, Navajo concludes, for the Tribes claim for compensation . . . does not derive from any liability-imposing provision of the IMLA or its implementing regulations. Post, at __ (slip op., at 1). The coal-leasing provisions of the IMLA and its allied regulations, Navajo explains, lacked the characteristics that typify a genuine trust relationship: Those provisions assigned the Secretary of the Interior no managerial role over coal leasing; they did not even establish the limited trust relationship that existed under the law at issue in Mitchell I. See post, at ____ (slip op., at 1617).
In the instant case, as the Courts opinion develops, the 1960 Act in fact created a trust not fairly characterized as bare, given the trustees authorized use and management. The plenary control the United States exercises under the Act as sole manager and trustee, I agree, places this case within Mitchell IIs governance.*
*. * Mitchell I does not tug against this placement. The General Allotment Act (GAA) at issue in Mitchell I, 445 U.S. 535 (1980), narrowly circumscribed its use of the term trust by making the Indian allottee, and not a representative of the United States, . . . responsible for using the land for agricultural or grazing purposes. Id., at 542543. The GAA thus removed one of the hallmarks of a more conventional fiduciary relationship. Ante, at 6 (citing Navajo, post, at __ (slip op., at 13) (the GAA removed a standard element of a trust relationship.)). The 1960 Act, in contrast, does not modify its mandate that the United States hold the property in trust for the White Mountain Apache Tribe, except to confirm that the Government-trustee may occupy and use the property. See ante, at 78 (internal quotation marks omitted). Occupation of the trust corpus by the trustee is a common feature of trusteeship, and does not itself alter the fiduciary obligations that an expressly created trust ordinarily entails. See ante, at 810.