United States v. White Mountain Apache Tribe, 537 U.S. 465, 17 (2003)

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

Thomas, J., dissenting

tions, 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 507-508.

In the instant case, as the Court's opinion develops, the 1960 Act in fact created a trust not fairly characterized as "bare," given the trustee's 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 II's governance.* To the extent that the Government allowed trust property "to fall into ruin," ante, at 475, I further agree, a damages remedy is fairly inferable.

Justice Thomas, with whom The Chief Justice, Justice Scalia, and Justice Kennedy join, dissenting.

The majority's conclusion that the Court of Federal Claims has jurisdiction over this matter finds support in neither the text of the 1960 Act, see Pub. L. 86-392, 74 Stat. 8, nor our case law. As the Court has repeatedly held, the test to determine if Congress has conferred a substantive right enforceable against the Government in a suit for money

*Mitchell I, 445 U. S. 535 (1980), does not tug against this placement. The General Allotment Act (GAA) at issue in Mitchell I 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 542-543. The GAA thus removed one of the "hallmarks of a more conventional fiduciary relationship." Ante, at 473 (citing Navajo, post, at 504 (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 475 (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 475-476.


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