United States v. White Mountain Apache Tribe, 537 U.S. 465, 16 (2003)

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Ginsburg, J., concurring

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].' " Ibid. (quoting Mitchell II, 463 U. S., at 219).

In this case, the threshold set by the Mitchell cases is met. The 1960 Act, Pub. L. 86-392, 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 469. 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 474-476, and "invest[s] the United States with discretionary authority to make direct use of portions of the trust corpus," ante, at 475; cf. Navajo, post, at 508 ("no provision of the [Indian Mineral Leasing Act (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 475, 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-trustee's use and occupancy, is fairly interpreted to mandate compensation for the harm caused by mal-administration of the property.

Navajo, in contrast, turns on the threshold question whether the 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 I's domain," Navajo concludes, for "the Tribe's claim for compensation . . . does not derive from any liability-imposing provision of the IMLA or its implementing regulations." Post, at 493. The coal-leasing provisions of the IMLA and its allied regula-

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