United States v. White Mountain Apache Tribe, 537 U.S. 465, 15 (2003)

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Cite as: 537 U. S. 465 (2003)

Ginsburg, J., concurring

toe the fiduciary mark in the future, it would bar the courts from making the Tribe whole for deterioration already suffered, and shield the Government against the remedy whose very availability would deter it from wasting trust property in the period before a Tribe has gone to court for injunctive relief. Mitchell II, 463 U. S., at 227 ("Absent a retrospective damages remedy, there would be little to deter federal officials from violating their trust duties, at least until the allot-tees managed to obtain a judicial decree against future breaches of trust" (quoting Mitchell I, 445 U. S., at 550 (internal quotation marks omitted))).


The judgment of the Court of Appeals for the Federal Circuit is affirmed, and the case is remanded to the Court of Federal Claims for further proceedings consistent with this opinion.

It is so ordered.

Justice Ginsburg, with whom Justice Breyer joins, concurring.

I join the Court's opinion, satisfied that it is not inconsistent with the opinion I wrote for the Court in United States v. Navajo Nation, post, p. 488.

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 506. If the Tribe satisfies that threshold, "the court must then determine whether the relevant source of substantive


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