UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
465 OCTOBER TERM, 2002
Syllabus
UNITED STATES v. WHITE MOUNTAIN APACHE
TRIBE
certiorari to the united states court of appeals for
the federal circuit
No. 01–1067. Argued December 2, 2002—Decided March 4, 2003
Under Pub. L. 86–392, 74 Stat. 8 (1960 Act), the “former Fort Apache
Military Reservation” is “held by the United States in trust for the
White Mountain Apache Tribe, subject to the right of the Secretary of
the Interior to use any part of the land and improvements.” The Secre-
tary has exercised that right with respect to about 30 of the post’s build-
ings and appurtenances. The Tribe sued the United States for the
amount necessary to rehabilitate the property occupied by the Govern-
ment in accordance with standards for historic preservation, alleging
that the United States had breached a fiduciary duty to maintain, pro-
tect, repair, and preserve the trust property. In its motion to dismiss,
the Government acknowledged that, under the Indian Tucker Act, it was
subject to the jurisdiction of the Court of Federal Claims with respect to
certain Indian tribal claims, but stressed that the waiver operated only
when underlying substantive law could fairly be interpreted as giving
rise to a particular duty, breach of which should be compensable in
money damages. The Government contended that jurisdiction was
lacking here because no statute or regulation could fairly be read to
impose a legal obligation on it to maintain or restore the trust property,
let alone authorize compensation for breach. The Court of Federal
Claims agreed and dismissed the complaint, relying primarily on United
States v. Mitchell, 445 U. S. 535 (Mitchell I), and United States v. Mitch-
ell, 463 U. S. 206 (Mitchell II). The court ruled that, like the Indian
General Allotment Act at issue in Mitchell I, the 1960 Act created noth-
ing more than a “bare trust,” with no predicate for finding a fiduciary
obligation enforceable by monetary relief. The Federal Circuit re-
versed and remanded, on the understanding that the Government’s
property use under the 1960 Act triggered a common-law trustee’s duty
to act reasonably to preserve any property the Secretary chose to uti-
lize, an obligation fairly interpreted as supporting a money damages
claim. The court held that the 1960 Act’s provision for the Govern-
ment’s exclusive control over the buildings actually occupied raised the
trust to the level of Mitchell II, supra, at 225, in which this Court held
that federal timber management statutes and regulations, under which

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
466 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE
Syllabus
the United States assumed “elaborate control” over tribal forests, iden-
tified a specific trust relationship enforceable by a damages award.
Held: The 1960 Act gives rise to Indian Tucker Act jurisdiction in the
Court of Federal Claims over the Tribe’s suit for money damages
against the United States. Pp. 472–479.
(a) The Indian Tucker Act gives that court jurisdiction over Indian
tribal claims that “otherwise would be cognizable . . . if the claimant
were not an Indian tribe,” 28 U. S. C. § 1505, but creates no substantive
right enforceable against the Government by a claim for money dam-
ages, e. g., Mitchell II, 463 U. S., at 216. A statute creates a right capa-
ble of grounding such a claim only if it “can fairly be interpreted as
mandating compensation by the . . . Government for the damages sus-
tained.” E. g., id., at 217. This “fair interpretation” rule demands a
showing demonstrably lower than the standard for the initial waiver of
sovereign immunity that is necessary to authorize a suit against the
Government. It is enough that a statute creating a Tucker Act right
be reasonably amenable to the reading that it mandates a right of recov-
ery in damages. See id., at 218–219. While the premise to a Tucker
Act claim will not be “lightly inferred,” id., at 218, a fair inference will
do. Pp. 472–473.
(b) The two Mitchell cases give a sense of when it is fair to infer a
fiduciary duty qualifying under the Indian Tucker Act and when it is
not. In Mitchell I, because the Allotment Act gave the Government no
functional obligations to manage timber, 445 U. S., at 542–543, and to the
contrary established that the Indian allottee, and not a representative of
the United States, is responsible for using the land, ibid., the Court
found that Congress did not intend to impose a duty on the Government
to manage resources, id., at 542. In Mitchell II, however, because the
statutes and regulations there considered gave the United States full
responsibility to manage Indian resources and land for the Indians’ ben-
efit, the Court held that they defined the contours of the United States’
fiduciary responsibilities beyond the “bare” or minimal level, and thus
could fairly be interpreted as mandating compensation through money
damages if the Government faltered in its responsibility. 463 U. S., at
224–226. Pp. 473–474.
(c) The 1960 Act goes beyond a bare trust and permits a fair inference
that the Government is subject to duties as a trustee and potentially
liable in damages for breach. The statute expressly defines a fiduciary
relationship in the provision that Fort Apache be held by the Govern-
ment in trust for the Tribe, then proceeds to invest the United States
with discretionary authority to make direct use of portions of the trust
corpus. It is undisputed that the Government has to this day availed

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
467 Cite as: 537 U. S. 465 (2003)
Syllabus
itself of its option. As to the property subject to the Government’s
actual use, then, the United States has not merely exercised daily super-
vision but has enjoyed daily occupation, and so has obtained control at
least as plenary as its authority over the timber in Mitchell II. Al-
though the 1960 Act, unlike the statutes cited in that case, does not
expressly subject the Government to management and conservation du-
ties, the fact that the property occupied by the United States is ex-
pressly subject to a trust supports a fair inference that an obligation to
preserve the property improvements was incumbent on the Government
as trustee. See, e. g., Central States, Southeast & Southwest Areas
Pension Fund v. Central Transport, Inc., 472 U. S. 559, 572. Thus, the
Government should be liable in damages for breach. Mitchell II,
supra, at 226. Pp. 474–476.
(d) The Court rejects the Government’s three defenses. First, the
argument that the 1960 Act specifically carved out of the trust the Gov-
ernment’s right to use the property it occupied is at odds with a natural
reading of the 1960 Act, which provided that “Fort Apache” was subject
to the trust, not that the trust consisted of only the property not used
by the Secretary. Second, the argument that there is nothing in the
1960 Act from which an intent to provide a damages remedy is fairly
inferable rests on a failure to appreciate either the role of trust law in
drawing a fair inference or the scope of United States v. Testan, 424
U. S. 392, and Army and Air Force Exchange Service v. Sheehan, 456
U. S. 728, on which the Government relies. The Government’s assertion
that an explicit provision for money damages is necessary to support
every Tucker Act claim would leave Mitchell II wrongly decided, for
there is no federal statute explicitly providing that inadequate timber
management would be compensated through a suit for damages. More
fundamentally, the Government’s position, if carried to its conclusion,
would read the trust relation out of Indian Tucker Act analysis; if a
specific provision for damages is needed, a trust obligation and trust
law are not. Sheehan and Testan are not to the contrary; they were
cases without any trust relationship in the mix of relevant fact, but with
affirmative reasons to believe that no damages remedy could have been
intended, absent a specific provision. Third, the Government is clearly
wrong when it argues that prospective injunctive relief tailored to the
situation, rather than the inference of a damages remedy, is the only
appropriate remedy for maintenance failures. If the Government is
suggesting that the recompense for run-down buildings should be an
affirmative order to repair them, it is merely proposing the economic
(but perhaps cumbersome) equivalent of damages. But if it is suggest-
ing that relief must be limited to an injunction to toe the fiduciary mark
in the future, it would bar the courts from making the Tribe whole for

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
468 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE
Opinion of the Court
deterioration already suffered, and shield the Government against the
remedy whose very availability would deter it from wasting trust prop-
erty in the period before a Tribe has gone to court for injunctive relief.
E. g., Mitchell II, supra, at 227. Pp. 476–479.
249 F. 3d 1364, affirmed and remanded.
Souter, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Ginsburg, and Breyer, JJ., joined. Ginsburg, J., filed a
concurring opinion, in which Breyer, J., joined, post, p. 479. Thomas, J.,
filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and
Kennedy, JJ., joined, post, p. 481.
Gregory G. Garre argued the cause for the United States.
With him on the briefs were Solicitor General Olson, Assist-
ant Attorney General Sansonetti, Deputy Solicitor General
Kneedler, Elizabeth Ann Peterson, and James M. Upton.
Robert C. Brauchli argued the cause and filed a brief for
respondent.*
Justice Souter delivered the opinion of the Court.
The question in this case arises under the Indian Tucker
Act: does the Court of Federal Claims have jurisdiction over
the White Mountain Apache Tribe’s suit against the United
States for breach of fiduciary duty to manage land and im-
provements held in trust for the Tribe but occupied by the
Government. We hold that it does.
I
The former military post of Fort Apache dates back to
1870 when the United States established the fort within ter-
ritory that became the Tribe’s reservation in 1877. In 1922,
Congress transferred control of the fort to the Secretary of
the Interior (Secretary) and, in 1923, set aside about 400
acres, out of some 7,000, for use as the Theodore Roosevelt
Indian School. Act of Jan. 24, 1923, ch. 42, 42 Stat. 1187.
*John E. Echohawk and Tracy A. Labin filed a brief for the National
Congress of American Indians as amicus curiae urging affirmance.

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
469 Cite as: 537 U. S. 465 (2003)
Opinion of the Court
Congress attended to the fort again in 1960, when it provided
by statute that “former Fort Apache Military Reservation”
would be “held by the United States in trust for the White
Mountain Apache Tribe, subject to the right of the Secretary
of the Interior to use any part of the land and improvements
for administrative or school purposes for as long as they are
needed for the purpose.” Pub. L. 86–392, 74 Stat. 8 (1960
Act). The Secretary exercised that right, and although the
record does not catalog the uses made by the Department of
the Interior, they extended to about 30 of the post’s buildings
and appurtenances, a few of which had been built when the
Government first occupied the land. Although the National
Park Service listed the fort as a national historical site in
1976, the recognition was no augury of fortune, for just over
20 years later the World Monuments Watch placed the fort
on its 1998 List of 100 Most Endangered Monuments. Brief
for Respondent 3.
In 1993, the Tribe commissioned an engineering assess-
ment of the property, resulting in a finding that as of 1998
it would cost about $14 million to rehabilitate the property
occupied by the Government in accordance with standards
for historic preservation. This is the amount the Tribe
sought in 1999, when it sued the United States in the Court
of Federal Claims, citing the terms of the 1960 Act, among
others,1 and alleging breach of fiduciary duty to “maintain,
protect, repair and preserve” the trust property. App. to
Pet. for Cert. 37a.
The United States moved to dismiss for failure to state
a claim upon which relief might be granted and for lack
of subject-matter jurisdiction. While the Government ac-
knowledged that the Indian Tucker Act, 28 U. S. C. § 1505,
invested the Court of Federal Claims with jurisdiction to
1 These included the Snyder Act, 42 Stat. 208, as amended, 25 U. S. C.
§ 13, and the National Historic Preservation Act, 80 Stat. 915, 16 U. S. C.
§ 470 et seq.

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
470 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE
Opinion of the Court
render judgments in certain claims by Indian tribes against
the United States, including claims based on an Act of Con-
gress, it stressed that the waiver operated only when under-
lying substantive law could fairly be interpreted as giving
rise to a particular duty, breach of which should be compen-
sable in money damages. The Government contended that
jurisdiction was lacking here because no statute or regula-
tion cited by the Tribe could fairly be read as imposing a
legal obligation on the Government to maintain or restore
the trust property, let alone authorizing compensation for
breach.2
The Court of Federal Claims agreed with the United
States and dismissed the complaint for lack of jurisdiction,
relying primarily on the two seminal cases of tribal trust
claims for damages, United States v. Mitchell, 445 U. S. 535
(1980) (Mitchell I), and United States v. Mitchell, 463 U. S.
206 (1983) (Mitchell II). Mitchell I held that the Indian
General Allotment Act (Allotment Act), 24 Stat. 388, as
amended, 25 U. S. C. § 331 et seq. (1976 ed.) (§§ 331–333
repealed 2000), providing that “the United States does and
will hold the land thus allotted . . . in trust for the sole use
and benefit of the Indian,” § 348; Mitchell I, supra, at 541,
established nothing more than a “bare trust” for the benefit
of tribal members. Mitchell II, supra, at 224. The general
trust provision established no duty of the United States to
manage timber resources, tribal members, rather, being “re-
sponsible for using the land,” “occupy[ing] the land,” and
“manag[ing] the land.” 445 U. S., at 542–543. The opposite
result obtained in Mitchell II, however, based on timber
2 Although it appears that the United States has not yet relinquished
control of any of the buildings, the United States concedes that “some
buildings have fallen into varying states of disrepair, and a few structures
have been condemned or demolished.” Brief for United States 4. For
present purposes we need not address whether or how this affects the
Tribe’s claims.

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
471 Cite as: 537 U. S. 465 (2003)
Opinion of the Court
management statutes, 25 U. S. C. §§ 406–407, 466, and regula-
tions, 25 CFR pt. 163 (1983), under which the United States
assumed “elaborate control” over the tribal forests. 463
U. S., at 209, 225. Mitchell II identified a specific trust rela-
tionship enforceable by award of damages for breach. Id.,
at 225–226.
Here, the Court of Federal Claims compared the 1960 Act
to the Allotment Act in Mitchell I, as creating nothing more
than a “bare trust.” It saw in the 1960 Act no mandate that
the United States manage the site on behalf of the Tribe,
and thus no predicate in the statutes and regulations identi-
fied by the Tribe for finding a fiduciary obligation enforceable
by monetary relief.
The Court of Appeals for the Federal Circuit reversed and
remanded, on the understanding that the United States’s use
of property under the proviso of the 1960 Act triggered the
duty of a common law trustee to act reasonably to preserve
any property the Secretary had chosen to utilize, an obliga-
tion fairly interpreted as supporting a claim for money dam-
ages. The Court of Appeals held that the provision for the
Government’s exclusive control over the building actually oc-
cupied raised the trust to the level of Mitchell II, in which
the trust relationship together with Government’s control
over the property triggered a specific responsibility.
Chief Judge Mayer dissented on the understanding that
the 1960 Act “carve[d] out” from the trust the portions of
the property that the Government is entitled to use for its
own benefit, with the consequence that the Tribe held only
a contingent future interest in the property, insufficient to
support even a common law action for permissive waste.
249 F. 3d 1364, 1384 (2001).
We granted certiorari to decide whether the 1960 Act
gives rise to jurisdiction over suits for money damages
against the United States, 535 U. S. 1016 (2002), and now
affirm.

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
472 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE
Opinion of the Court
II
A
Jurisdiction over any suit against the Government re-
quires a clear statement from the United States waiving sov-
ereign immunity, Mitchell I, supra, at 538–539, together
with a claim falling within the terms of the waiver, Mitchell
II, supra, at 216–217. The terms of consent to be sued may
not be inferred, but must be “unequivocally expressed,”
Mitchell I, supra, at 538 (quoting United States v. King, 395
U. S. 1, 4 (1969)) (internal quotation marks omitted), in order
to “define [a] court’s jurisdiction,” Mitchell I, supra, at 538
(quoting United States v. Sherwood, 312 U. S. 584, 586 (1941))
(internal quotation marks omitted). The Tucker Act con-
tains such a waiver, Mitchell II, supra, at 212, giving the
Court of Federal Claims jurisdiction to award damages upon
proof of “any claim against the United States founded either
upon the Constitution, or any Act of Congress,” 28 U. S. C.
§ 1491(a)(1), and its companion statute, the Indian Tucker
Act, confers a like waiver for Indian tribal claims that “other-
wise would be cognizable in the Court of Federal Claims if
the claimant were not an Indian tribe,” § 1505.
Neither Act, however, creates a substantive right enforce-
able against the Government by a claim for money damages.
Mitchell I, supra, at 538–540; Mitchell II, supra, at 216. As
we said in Mitchell II, a statute creates a right capable of
grounding a claim within the waiver of sovereign immunity
if, but only if, it “can fairly be interpreted as mandating com-
pensation by the Federal Government for the damage sus-
tained.” 463 U. S., at 217 (quoting United States v. Testan,
424 U. S. 392, 400 (1976)) (internal quotation marks omitted).
This “fair interpretation” rule demands a showing demon-
strably lower than the standard for the initial waiver of
sovereign immunity. “Because the Tucker Act supplies a
waiver of immunity for claims of this nature, the separate
statutes and regulations need not provide a second waiver

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
473 Cite as: 537 U. S. 465 (2003)
Opinion of the Court
of sovereign immunity, nor need they be construed in the
manner appropriate to waivers of sovereign immunity.”
Mitchell II, supra, at 218–219. It is enough, then, that a
statute creating a Tucker Act right be reasonably amenable
to the reading that it mandates a right of recovery in dam-
ages. While the premise to a Tucker Act claim will not be
“lightly inferred,” 463 U. S., at 218, a fair inference will do.
B
The two Mitchell cases give a sense of when it is fair to
infer a fiduciary duty qualifying under the Indian Tucker Act
and when it is not. The characterizations of the trust as
“limited,” Mitchell I, 445 U. S., at 542, or “bare,” Mitchell
II, supra, at 224, distinguish the Allotment Act’s trust-in-
name from one with hallmarks of a more conventional fidu-
ciary relationship. See United States v. Navajo Nation,
post, at 504 (discussing §§ 1 and 2 of the Allotment Act in
Mitchell I as having “removed a standard element of a trust
relationship”). Although in form the United States “h[e]ld
the land . . . in trust for the sole use and benefit of the In-
dian,” 25 U. S. C. § 348, the statute gave the United States
no functional obligations to manage timber; on the contrary,
it established that “the Indian allottee, and not a representa-
tive of the United States, is responsible for using the land,”
that “the allottee would occupy the land,” and that “the al-
lottee, and not the United States, was to manage the land.”
Mitchell I, 445 U. S., at 542–543. Thus, we found that Con-
gress did not intend to “impose any duty” on the Govern-
ment to manage resources, id., at 542; cf. Mitchell II, supra,
at 217–218, and we made sense of the trust language, consid-
ered without reference to any statute beyond the Allotment
Act, as intended “to prevent alienation of the land” and to
guarantee that the Indian allottees were “immune from state
taxation,” Mitchell I, supra, at 544.
The subsequent case of Mitchell II arose on a claim that
did look beyond the Allotment Act, and we found that stat-

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
474 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE
Opinion of the Court
utes and regulations specifically addressing the management
of timber on allotted lands raised the fair implication that
the substantive obligations imposed on the United States by
those statutes and regulations were enforceable by damages.
The Department of the Interior possessed “comprehensive
control over the harvesting of Indian timber” and “exer-
cise[d] literally daily supervision over [its] harvesting and
management,” Mitchell II, supra, at 209, 222 (quoting White
Mountain Apache Tribe v. Bracker, 448 U. S. 136, 145, 147
(1980)) (internal quotation marks omitted), giving it a “per-
vasive” role in the sale of timber from Indian lands under
regulations addressing “virtually every aspect of forest man-
agement,” Mitchell II, supra, at 219, 220. As the statutes
and regulations gave the United States “full responsibility
to manage Indian resources and land for the benefit of the
Indians,” we held that they “define[d] . . . contours of the
United States’ fiduciary responsibilities” beyond the “bare”
or minimal level, and thus could “fairly be interpreted as
mandating compensation” through money damages if the
Government faltered in its responsibility. 463 U. S., at
224–226.
III
A
The 1960 Act goes beyond a bare trust and permits a fair
inference that the Government is subject to duties as a
trustee and liable in damages for breach. The statutory lan-
guage, of course, expressly defines a fiduciary relationship 3
in the provision that Fort Apache be “held by the United
3 Where, as in Mitchell II, 463 U. S. 206, 225 (1983), the relevant sources
of substantive law create “[a]ll of the necessary elements of a common-law
trust,” there is no need to look elsewhere for the source of a trust relation-
ship. We have recognized a general trust relationship since 1831. Cher-
okee Nation v. Georgia, 5 Pet. 1, 16 (1831) (characterizing the relationship
between Indian tribes and the United States as “a ward to his guardian”);
Mitchell II, supra, at 225 (discussing “the undisputed existence of a gen-
eral trust relationship between the United States and the Indian people”).

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
475 Cite as: 537 U. S. 465 (2003)
Opinion of the Court
States in trust for the White Mountain Apache Tribe.” 74
Stat. 8. Unlike the Allotment Act, however, the statute pro-
ceeds to invest the United States with discretionary author-
ity to make direct use of portions of the trust corpus. The
trust property is “subject to the right of the Secretary of the
Interior to use any part of the land and improvements for
administrative or school purposes for as long as they are
needed for the purpose,” ibid., and it is undisputed that the
Government has to this day availed itself of its option. As
to the property subject to the Government’s actual use, then,
the United States has not merely exercised daily supervision
but has enjoyed daily occupation, and so has obtained control
at least as plenary as its authority over the timber in Mitch-
ell II. While it is true that the 1960 Act does not, like the
statutes cited in that case, expressly subject the Government
to duties of management and conservation, the fact that the
property occupied by the United States is expressly subject
to a trust supports a fair inference that an obligation to pre-
serve the property improvements was incumbent on the
United States as trustee. This is so because elementary
trust law, after all, confirms the commonsense assumption
that a fiduciary actually administering trust property may
not allow it to fall into ruin on his watch. “One of the funda-
mental common-law duties of a trustee is to preserve and
maintain trust assets,” Central States, Southeast & South-
west Areas Pension Fund v. Central Transport, Inc., 472
U. S. 559, 572 (1985) (citing G. Bogert & G. Bogert, Law of
Trusts and Trustees § 582, p. 346 (rev. 2d ed. 1980)); see
United States v. Mason, 412 U. S. 391, 398 (1973) (standard
of responsibility is “such care and skill as a man of ordinary
prudence would exercise in dealing with his own property”
(quoting 2 A. Scott, Trusts 1408 (3d ed. 1967) (internal quota-
tion marks omitted))); Restatement (Second) of Trusts § 176
(1957) (“The trustee is under a duty to the beneficiary to use
reasonable care and skill to preserve the trust property”).
Given this duty on the part of the trustee to preserve corpus,

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
476 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE
Opinion of the Court
“it naturally follows that the Government should be liable in
damages for the breach of its fiduciary duties.” 4 Mitchell
II, supra, at 226.
B
The United States raises three defenses against this con-
clusion, the first being that the property occupied by the
Government is not trust corpus at all. It asserts that in the
1960 Act Congress specifically “carve[d] out of the trust” the
right of the Federal Government to use the property for the
Government’s own purposes. Brief for United States 24–25
(emphasis deleted). According to the United States, this
carve-out means that the 1960 Act created even less than the
“bare trust” in Mitchell I. But this position is at odds with
a natural reading of the 1960 Act. It provided that “Fort
Apache” was subject to the trust; it did not read that the
trust consisted of only the property not used by the Secre-
tary. Nor is there any apparent reason to strain to avoid
the straightforward reading; it makes sense to treat even the
property used by the Government as trust property, since
any use the Secretary would make of it would presumably be
intended to redound to the benefit of the Tribe in some way.
Next, the Government contends that no intent to provide
a damages remedy is fairly inferable, for the reason that
“[t]here is not a word in the 1960 Act—the only substantive
4 The proper measure of damages is not before us. We mean to imply
nothing about the relevance of any historic building or preservation stand-
ards. Neither do we address the significance of the fact that a trustee is
generally indemnified for the cost of upkeep and maintenance. See Re-
statement (Second) of Trusts § 244 (1957) (“The trustee is entitled to in-
demnity out of the trust estate for expenses properly incurred by him in
the administration of the trust”). Nor do we reach the issue whether a
rent-free occupant is obligated to supply funds to maintain the property it
benefits from. See Restatement of Property § 187, Comment b (1936)
(“When the right of the owner of the future interest is that the owner of
the estate for life shall do a given act, as for example, . . . make repairs . . .
then this right is made effective through compelling by judicial action the
specific doing of the act”).

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
477 Cite as: 537 U. S. 465 (2003)
Opinion of the Court
source of law on which the Tribe relies—that suggests the
existence of such a mandate.” Brief for United States 28.
The argument rests, however, on a failure to appreciate
either the role of trust law in drawing a fair inference or the
scope of United States v. Testan, 424 U. S. 392 (1976), and
Army and Air Force Exchange Service v. Sheehan, 456 U. S.
728 (1982), cited in support of the Government’s position.
To the extent that the Government would demand an ex-
plicit provision for money damages to support every claim
that might be brought under the Tucker Act, it would substi-
tute a plain and explicit statement standard for the less de-
manding requirement of fair inference that the law was
meant to provide a damages remedy for breach of a duty.
To begin with, this would leave Mitchell II a wrongly de-
cided case, for one would look in vain for a statute explicitly
providing that inadequate timber management would be
compensated through a suit for damages. But the more fun-
damental objection to the Government’s position is that, if
carried to its conclusion, it would read the trust relation out
of Indian Tucker Act analysis; if a specific provision for dam-
ages is needed, a trust obligation and trust law are not.
And this likewise would ignore Mitchell I, where the trust
relationship was considered when inferring that the trust ob-
ligation was enforceable by damages. To be sure, the fact
of the trust alone in Mitchell I did not imply a remedy in
damages or even the duty claimed, since the Allotment Act
failed to place the United States in a position to discharge
the management responsibility asserted. To find a specific
duty, a further source of law was needed to provide focus for
the trust relationship. But once that focus was provided,
general trust law was considered in drawing the inference
that Congress intended damages to remedy a breach of
obligation.
Sheehan and Testan are not to the contrary; they were
cases without any trust relationship in the mix of relevant
fact, but with affirmative reasons to believe that no damages

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
478 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE
Opinion of the Court
remedy could have been intended, absent a specific provision.
In Sheehan, specific authorization was critical because of a
statute that generally granted employees the damages rem-
edy petitioner sought, but “expressly denie[d] that cause of
action” to Army and Air Force Exchange Service personnel,
such as petitioner. 456 U. S., at 740. In Sheehan, resting
in part on Testan, the Tucker Act plaintiffs unsuccessfully
asserted that the Court of Claims had jurisdiction over a
claim against the United States for money damages for alleg-
edly improper job classifications under the Classification Act.
We stressed that no provision in the statute “expressly
makes the United States liable,” Testan, 424 U. S., at 399, and
rather, that there was a longstanding presumption against
petitioner’s argument. “The established rule is that one is
not entitled to the benefit of a position until he has been duly
appointed to it . . . . The Classification Act does not purport
by its terms to change that rule, and we see no suggestion
in it or in its legislative history that Congress intended to
alter it.” Id., at 402. Thus, in both Sheehan and Testan
we required an explicit authorization of a damages remedy
because of strong indications that Congress did not intend to
mandate money damages. Together they show that a fair
inference will require an express provision, when the legal
current is otherwise against the existence of a cognizable
claim. But that was not the case in Mitchell II and is not
the case here.
Finally, the Government argues that the inference of a
damages remedy is unsound simply because damages are in-
appropriate as a remedy for failures of maintenance, prospec-
tive injunctive relief being the sole relief tailored to the situ-
ation. Reply Brief for United States 19. We think this is
clearly wrong. If the Government is suggesting that the
recompense for run-down buildings should be an affirmative
order to repair them, it is merely proposing the economic
(but perhaps cumbersome) equivalent of damages. But if it
is suggesting that relief must be limited to an injunction to

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
479 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 suf-
fered, 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 offi-
cials 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 (in-
ternal quotation marks omitted))).
IV
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 inconsist-
ent 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 Mitch-
ell 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

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
480 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE
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, au-
thorizes 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 provi-
sion of the [Indian Mineral Leasing Act (IMLA)] or its regula-
tions contains any trust language with respect to coal leas-
ing”). Further, as the Court describes, the Tribe tenably
maintains that the Government has “availed itself of its op-
tion” to “exercis[e] daily supervision . . . [and] enjo[y] daily oc-
cupation” 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 inter-
preted 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 Gov-
ernment. Navajo answers that question in the negative.
The “controversy . . . falls within Mitchell I’s domain,” Nav-
ajo 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-

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
481 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 leas-
ing; they did not even establish the “limited trust relation-
ship” 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, Jus-
tice 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 circum-
scribed 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 relation-
ship.” 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.

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
482 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE
Thomas, J., dissenting
damages is whether an Act “can fairly be interpreted as
mandating compensation by the Federal Government for the
damage sustained.” United States v. Testan, 424 U. S. 392,
400 (1976) (quoting Eastport S. S. Corp. v. United States, 178
Ct. Cl. 599, 607, 372 F. 2d 1002, 1009 (1967)) (emphasis added).
Instead of faithfully applying this test, however, the Court
engages in a new inquiry, asking whether common-law trust
principles permit a “fair inference” that money damages are
available, that finds no support in existing law. Ante, at 473.
But even under the majority’s newly devised approach, there
is no basis for finding that Congress intended to create any-
thing other than a “bare trust,” which we have found insuf-
ficient to confer jurisdiction on the Court of Federal Claims
in United States v. Mitchell, 445 U. S. 535 (1980) (Mitchell
I). Because the 1960 Act “can[not] fairly be interpreted as
mandating compensation by the Federal Government for
damage sustained” by the White Mountain Apache Tribe
(Tribe), Testan, supra, at 400, I respectfully dissent.
I
In United States v. Testan, supra, at 400, the Court stated
that a “grant of a right of action [for money damages against
the United States] must be made with specificity.” Accord,
Army and Air Force Exchange Service v. Sheehan, 456 U. S.
728, 739 (1982) (stating that, under the Tucker Act, “jurisdic-
tion over respondent’s complaint cannot be premised on the
asserted violation of regulations that do not specifically au-
thorize awards of money damages”). The majority agrees
that the 1960 Act does not specifically authorize the award
of money damages; indeed, the Act does not even “spea[k] in
terms of money damages or of a money claim against the
United States.” Gnotta v. United States, 415 F. 2d 1271,
1278 (CA8 1969) (Blackmun, J.). Instead, the Court holds
that the use of the word “trust” in the 1960 Act creates a
“fair inference” that there is a cause of action for money dam-
ages in favor of the Tribe. Ante, at 474–475.

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
483 Cite as: 537 U. S. 465 (2003)
Thomas, J., dissenting
But the Court made clear in Mitchell I that the existence
of a trust relationship does not itself create a claim for money
damages. The General Allotment Act, the statute at issue
in Mitchell I, expressly placed responsibility on the United
States to hold lands “in trust for the sole use and benefit of
the Indian . . . .” 445 U. S., at 541 (quoting 24 Stat. 389, as
amended, 25 U. S. C. § 348). Despite this language, the
Court concluded that the congressional intent necessary to
render the United States liable for money damages was lack-
ing. The Court reasoned that the General Allotment Act
created only a “bare trust” because Congress did “not unam-
biguously provide that the United States ha[d] undertaken
full fiduciary responsibilities as to the management of allot-
ted lands.” 1 445 U. S., at 542.
The statute under review here provides no more evidence
of congressional intent to authorize a suit for money damages
than the General Allotment Act did in Mitchell I. The Tribe
itself acknowledges that the 1960 Act is “silen[t]” not only
with respect to money damages, but also with regard to any
underlying “maintenance and protection duties” that can
fairly be construed as creating a fiduciary relationship.
Brief for Respondent 11; see also 249 F. 3d 1364, 1377 (CA
Fed. 2001) (“It is undisputed that the 1960 Act does not ex-
plicitly define the government’s obligations”). Indeed, un-
like the statutes and regulations at issue in United States v.
1 The Court of Claims has observed that the relationship between the
United States and Indians is not governed by ordinary trust principles:
“The general relationship between the United States and the Indian tribes
is not comparable to a private trust relationship. When the source of
substantive law intended and recognized only the general, or bare, trust
relationship, fiduciary obligations applicable to private trustees are not
imposed on the United States. Rather, the general relationship between
Indian tribes and [the United States] traditionally has been understood to
be in the nature of a guardian-ward relationship. A guardianship is not
a trust. The duties of a trustee are more intensive than the duties of
some other fiduciaries.” Cherokee Nation of Oklahoma v. United States,
21 Cl. Ct. 565, 573 (1990) (citations and internal quotation marks omitted).

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
484 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE
Thomas, J., dissenting
Mitchell, 463 U. S. 206 (1983) (Mitchell II), the 1960 Act does
not “establish . . . ‘comprehensive’ responsibilities of the Fed-
eral Government in managing the” Fort Apache property.
Id., at 222. Because there is nothing in the statute that
“clearly establish[es] fiduciary obligations of the Government
in the management and operation of Indian lands,” the 1960
Act creates only a “bare trust.” Id., at 226.
In addition, unlike the statutes and regulations at issue in
Mitchell I and Mitchell II, “[n]othing in the 1960 Act imposes
a fiduciary responsibility to manage the fort for the benefit
of the Tribe and, in fact, it specifically carves the govern-
ment’s right to unrestricted use for the specified purposes
out of the trust.” 249 F. 3d, at 1384 (Mayer, C. J., dissent-
ing); see also id., at 1375 (“It is undisputed that the 1960 Act
contains no . . . requirement” for the United States “to man-
age the trust corpus for the benefit of the beneficiaries, i. e.,
the Native Americans”). The 1960 Act authorizes the “Sec-
retary of the Interior to use any part of the land and im-
provements for administrative or school purposes for as long
as they are needed for that purpose.” 74 Stat. 8. The Gov-
ernment’s use of the land does not have to inure to the bene-
fit of the Indians. Nor is there any requirement that the
United States cede control over the property now or in the
future. Thus, if anything, there is less evidence of a fidu-
ciary relationship in the 1960 Act than there was in the Gen-
eral Allotment Act at issue in Mitchell I.
If Congress intended to create a compensable trust rela-
tionship between the United States and the Tribe with re-
spect to the Fort Apache property, it provided no indication
to this effect in the text of the 1960 Act. Accordingly,
I would hold that the 1960 Act created only a “bare trust”
between the United States and the Tribe.
II
In concluding otherwise, the majority gives far too much
weight to the Government’s factual “control” over the Fort

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
485 Cite as: 537 U. S. 465 (2003)
Thomas, J., dissenting
Apache property, which is all that distinguishes this case
from Mitchell I. The majority holds that the United States
“has obtained control at least as plenary as its authority over
the timber in Mitchell II.” Ante, at 475. This analysis,
however, “misconstrues . . . Mitchell II by focusing on the
extent rather than the nature of control necessary to estab-
lish a fiduciary relationship.” 46 Fed. Cl. 20, 27 (1999). The
“timber management statutes . . . and the regulations pro-
mulgated thereunder,” Mitchell II, 463 U. S., at 222 (empha-
sis added), are what led the Court to conclude that there was
“pervasive federal control” in the “area of timber sales and
timber management,” id., at 225, n. 29. But, until now, the
Court has never held the United States liable for money
damages under the Tucker Act or Indian Tucker Act based
on notions of factual control that have no foundation in the
actual text of the relevant statutes.
Respondent argues that Mitchell II raised control to talis-
manic significance in our Indian Tucker Act jurisprudence.
To be sure, the Court did state:
“[A] fiduciary relationship necessarily arises when the
Government assumes such elaborate control over forests
and properties belonging to the Indians. . . . ‘[W]here
the Federal Government takes on or has control or su-
pervision over tribal monies or properties . . . (unless
Congress has provided otherwise) even though nothing
is said expressly in the authorizing or underlying statute
(or other fundamental document) about a trust fund, or
a trust or fiduciary connection.’ ” Id., at 225 (quoting
Navajo Tribe v. United States, 224 Ct. Cl. 171, 183, 624
F. 2d 981, 987 (1980)).
However, this case does not involve the level of “elaborate
control over” the Tribe’s property that the Court found suf-
ficient to create a compensable trust duty in Mitchell II.
Mitchell II involved a “comprehensive” regulatory scheme
that “addressed virtually every aspect of forest manage-

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
486 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE
Thomas, J., dissenting
ment,” and under which the United States assumed “full
responsibility to manage Indian resources and land for the
benefit of the Indians.” 463 U. S., at 220, 222, 224 (emphasis
added). Here, by contrast, there are no management duties
set forth in any “fundamental document,” and thus the
United States has the barest degree of control over the
Tribe’s property. And, unlike Mitchell II, the bare control
that is exercised by the United States over the property
does not inure to the benefit of the Indians. Supra, at 484.
In my view, this is more than sufficient to distinguish this
case from Mitchell II.
Moreover, even assuming that Mitchell II can be read to
support the proposition that mere factual control over prop-
erty is sufficient to create compensable trust duties (which it
cannot), the Court has never provided any guidance on the
nature and scope of such duties. And, in any event, the
Court has never before held that “control” alone can give
rise to, as the majority puts it, the specific duty to “preserve
the property.” Ante, at 475. Indeed, had Congress wished
to create such a duty, it could have done so expressly in the
1960 Act. Its failure to follow that course strongly suggests
that Congress did not intend to create a compensable trust
relationship between the United States and the Tribe.
In addition, the Court’s focus on control has now rendered
the inquiry open-ended, with questions of jurisdiction deter-
mined by murky principles of the common law of trusts,2 and
2 Even assuming the common law of trusts is relevant to determining
whether a claim of money damages exists against the United States, it is
well established that a trustee is not ultimately liable for the costs of
upkeep and maintenance of the trust property. See Restatement (Sec-
ond) of Trusts § 244 (1957) (“The trustee is entitled to indemnity out of the
trust estate for expenses properly incurred by him in the administration of
the trust”); 3A A. Scott & W. Fratcher, The Law of Trusts § 244, p. 325
(4th ed. 1988) (“[The trustee] is entitled to indemnity for liabilities prop-
erly incurred for the payment of taxes, for repairs, for improvements . . .”).
Besides making the bald assertion that money damages “naturally fol-
lo[w]” from the existence of a trust duty, ante, at 476 (internal quotation

537US2 Unit: $U24 [04-16-04 22:50:56] PAGES PGT: OPIN
487 Cite as: 537 U. S. 465 (2003)
Thomas, J., dissenting
a parcel-by-parcel determination whether “portions of the
property were under United States control,” 249 F. 3d, at
1383. Such an approach provides little certainty to guide
Congress in fashioning legislation that insulates the United
States from damages for breach of trust. Instead, to the
ultimate detriment of the Tribe, Congress might refrain from
creating trust relationships out of apprehension that the use
of the word “trust” will subject the United States to liability
for money damages.
* * *
The Court today fashions a new test to determine whether
Congress has conferred a substantive right enforceable
against the United States in a suit for money damages. In
doing so, the Court radically alters the relevant inquiry from
one focused on the actual fiduciary duties created by statute
or regulation to one divining fiduciary duties out of the use
of the word “trust” and notions of factual control. See ante,
at 474–475. Because I find no basis for this approach in our
case law or in the language of the Indian Tucker Act,
I respectfully dissent.
marks omitted), the Court makes no attempt to explain how a damages
remedy lies against the United States when the same remedy would not
be available against a private trustee.