Navajo Tribe v. United States

NICHOLS, Judge,

concurring and dissenting:

I agree to this: if the Indian tribal claimant,in a Claims Commission Act proceeding, 25 U.S.C. § 70a, establishes the wrongful invasion of any Indian account in government control, before the cut-off date of August 13, 1946, it has become entitled to a proceeding in equity in which the subsequent management of the fund must be accounted for, any diversion of the moneys into other accounts traced, and any wrongs made good, down to the date of final adjudication, whenever that may be. I base this right on the nature of an accounting as held in Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483 (1966). The right to this "accrued” before August 13, 1946, if the first wrong preceded that date, but if it occurred later, there was no timely accrual and no jurisdiction to accord that type of relief.

What, respectfully, I cannot accept, is what the opinion seems to say: that the establishment of a bad precedent, *34 before August 13, 1946, "accrues” a claim for any wrong following that precedent that occurs thereafter. Thus, to give a concrete illustration, if the government wrongly uses Indian funds to provide an electric range for the resident agent’s quarters, before the magic date, it is also liable if it wrongly uses other Indian funds to provide a copying machine for the agent’s office, after that date, without regard to the identity of the accounts invaded. I suppose the nexus is that the aggrieved tribe is the same, and the defendant’s claim of right is similar to the extent that the earlier diversion might be cited as a precedent for the later one. As I view the situation, the right to accounting pertains to accounts.- My formulation would do better for the Indians than the court’s, in some situations, worse in others. Maybe most of the time we would reach the same result. Perhaps I misunderstand what the court means in attaching the consequences it does to a "wrongful course of government conduct,” but I think a lot of others will too.

I’m not convinced that this court intended in the opinion in Gila River Pima-Maricopa Indians v. United States, 135 Ct. Cl. 180 , 140 F.Supp. 776 (1956), to announce views in conflict with mine. The problem the court addressed there was "wrongs” before August 13, 1946, with "damages” after. P. 185. The portion of the claims of that tribe that is before us now, Appeal No. 4-76, involves an alleged wrongful assessment of Indians for irrigation water they believed themselves entitled to receive without charge. I am prepared to believe that the Secretary’s regulations, before August 13, 1946, denying such entitlement "accrued” all at once a claim for recovery of all moneys exacted from the Indians for water both before and after that date. This does not require the "intuitive leap” that the electric range - copying machine situation I have postulated does. I do not think any of the claims in that case did. Our decision on their War Relocation claims, 199 Ct. Cl. 586 , 467 F.2d 1351 (1972), reveals no problem of wrongs after August 13, 1946.

The court in the volume 135 case quite obviously used the words "continuing claim” when it meant the opposite. The phrase, as used in the cases cited in Judge Davis’ n. 17, means a claim that does not accrue all at once. It accrues by degrees, whenever a new money payment becomes due. *35 But the court obviously meant by "continuing claim” in the Gila River case one that did accrue all at once, the result obviously, of a single "wrong.” This was in my view a mere verbal inadvertence that does not require overruling the decision as a precedent, but it should induce hesitation in using its language beyond the facts then before the court.

An Indian claim that accrued only after August 13, 1946, may be now unenforceable in any tribunal. In general the statutory scheme under the present 28 U.S.C. § 1505 appears to be that if the claim accrued only after August 13, 1946, the tribal claimant must come under the regular jurisdictional categories of section 1491, with the single addition of claims founded on treaties. This excludes "fair and honorable dealings” claims, other moral claims, if any, and equitable accounting claims as held in Klamath and Modoc Tribe, supra. The court seems to say in dictum that this does not exclude very much, but that remains to be determined. It will be the issue, e.g., in Mitchell v. United States, Nos. 772-71 through 775-71, now pending, and no doubt in many other cases. Congress clearly intended a difference of substance to turn on whether the claim accrued before or after August 13, 1946.

It is unfortunate if either the court or the defendant has misled Indian claimants, and undoubtedly, the distinctions that must be drawn do not impress the mind as just ones. I surmise that Congress in 1946 supposed injustices to Indians to be matters of history, so that there was no need for the future for tribes to have any different standing than other Tucker Act claimants. That we have so many allegations of wrong courses of conduct, whether "continuing claims” or not, passing to and through the deadline dates, presents an unforeseen problem, and to put it bluntly, a mess.

The Supreme Court’s "snail darter” decision, Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), appears, among other significant aspects, to announce an end to the practice of trying to "fix up” defective legislation by judicial decision. Absent constitutional factors not here involved, it is the duty of Congress and Congress alone to correct its own errors. Here, initial congressional misconceptions have consequences exacerbated by misunderstandings and changes in the government’s position. *36 Legislation is needed, but legislation by judges can only make a bad situation worse.

In pursuit of its laudable aims, the majority glosses entirely too lightly over the doctrine of strict construction of the consent to be sued. The truth is that the original Tucker Act, 25 Stat. 505 , Act of March 3, 1887, consented to suits in respect of claims against the United States when the party would be entitled to redress, if the United States were suable, in "equity or admiralty.” United States v. Jones, 131 U.S. 1 (1889) largely eliminated this so far as equity was concerned, holding that a suit for specific performance was not consented to. Thus the cases as to reformation and recision of contracts, referred to in the court’s f.n. 21 merely preserved remnants of a grant of equity jurisdiction which, by the statutory language alone, was seemingly much broader. They do not prove the consent to be sued is not construed strictly. Similarly, the grant of admiralty jurisdiction went by the board in Matson Navigation Co. v. United States, 384 U. S. 352 (1932). This court now cites Amell v. United States, 384 U.S. 158 (1966), but that case must be regarded as somewhat of a sport. Mr. Justice Harlan’s dissent is in its reasoning closer to the usual approach of his Court to consent to be sued issues. United States v. Emery, 237 U.S. 28 (1915), construed the original Tucker Act to allow tax refund suits, Mr. Justice Holmes saying at p. 32—

* * * [It is an] inadmissible premise that the great act of justice embodied in the jurisdiction of the Court of Claims is to be construed strictly and read with an adverse eye. * * *

But this cannot be taken as a safe guide to the law as it is today. The Congress deemed it necessary to ratify the result in what is now 28 U.S.C. § 1346, stating that the jurisdiction of district courts is "concurrent” with that of the Court of Claims. The rule disfavoring repeals by implication does not apply to repeals by implication of consents to be sued in the Court of Claims; this is the necessary conclusion from the Matson decision, supra. The Congress later ratified the result of the Matson decision, as set forth in the dissent in Amell . I stated for this court in Denver & Rio Grande Western R.R. v. United States, 205 Ct. *37 Cl. 597, 599 , 505 F.2d 1266, 1267 (1974), that our jurisdiction in tax refund cases depended both on sections 1346 and 1491, which surprised some critics, but was clearly correct; the "concurrent” language was necessary to save our Tucker Act tax refund jurisdiction against the rule of strict construction of the consent to be sued, associated with loose construction of repeals by implication.

The rule of strict construction is very much alive in our time, as witness United States v. King, 395 U.S. 1 (1968); United States v. Testan, 424 U.S. 392 (1976); and United States v. Hopkins, 427 U.S. 123 (1976), all reversing decisions of this court on consent to be sued issues. I believe a fair construction of these and earlier cases is that to be suable, a claim must (a) come within the express literal language of a statutory consent to be sued, and (b) must also come within the general congressional scheme as judicially conceived. Hopkins’ claim failed under the first test though it might have passed the second. To give equal rights to employees of certain non-appropriated agencies, Congress extended the Tucker Act jurisdiction, but unfortunately said it extended to contracts of such agencies. Since most of their employees, like those of other parts of the government serve by appointment and not by contract, held, the extension did not apply to them. The claim in United States v. Jones, supra, failed on the second ground though it passed the first. That is, it was an equitable claim, and Congress in the original Tucker Act said this court should have jurisdiction of equitable claims, but the court just could not conceive, after careful analysis of the whole statutory scheme, that Congress intended this court to be telling executive branch officials what to do, as it would in a specific performance decree. The court below, it may be noted a circuit court under the concurrent jurisdiction, had applied the first test but not the second.

Now, it can hardly be denied that as said above, important limitations on the consent to suit were intended with respect to Indian claims that accrued after August 13, 1946. It appears at least superficially from 28 U.S.C. § 1505 that an Indian tribe can sue on a claim accruing after that date only if it is one of the classes or categories of claims founded on a treaty or on which individual Indians and *38 individual non-Indians can sue, i.e., a claim founded on the Constitution, etc. If the claim accrued before August 13, 1946, it was maintainable on much broader bases. 25 U.S.C. § 70a. The court hardly attempts to deny that there is that difference in the congressional intent, but it seeks to mitigate and modify the difference by holding, e.g., that a claim for misuse of Indian funds to buy a copying machine after August 13, 1946, accrued before August 13, 1946, if a precedent for such misuse occurred before that date. This seems to me to invite another reversal, though I agree that an accounting, properly so called, can follow a misused account through and after August 13, 1946, to the present time. By the Klamath decision, supra, the right to an accounting is equitable, not legal, and carries through so that the court can examine the fund in the hands of the accountable custodian as of the time of trial.

The court, in effect, says it can define "claim” any way it pleases, a concept more reminiscent of Alice in Wonderland than of Mr. Justice Holmes. In Grumman Aerospace Corp. v. United States, 217 Ct. Cl., 285 , 579 F. 2d 586 (1978), the court made a decision concerning the meaning of the word "claim” that I did not entirely understand, and dissented from in part, but it seems to say a "claim” is a controversy wherein the "claimant” is either resisting or prosecuting a present demand for money. The word "claim” is certainly one of varied meanings, as pointed out in that dissent. The most used and most restrictive definition is perhaps that in United States v. McNinch, 356 U.S. 595, 599 (1958), "a demand for money or some transfer of public property.” In any context except that of legislation granting consent to be sued, it might well be, if the context permitted, a "claim” might include a demand for redress for a wrong not yet committed. The difficulty here is, if that is the meaning, the whole object of Congress in distinguishing between claims accrued before and after August 13, 1946, is frustrated. Our Gila River, vol. 135 decision, did not hold that a "claim” was broad enough "to cover a challenge to a continuing course of conduct injurious to the Indian claimant.” This subtly transfers the unhappily chosen word "continuing” as used therein, from the claim to the course of conduct. 1 do not believe there is any authority for so sweeping a use of the word "claim” but I do not deny *39 it is possible if the context permits. Does the context permit?

With regard to the meaning of "accruing after August 13, 1946,” the usual rule is that a claim first accrues when all the events to fix the liability of the United States have occurred., Empire Institute of Tailoring, Inc. v. United States, 142 Ct. Cl. 165 , 161 F.Supp. 409 (1958). Can this be said of a wrong that has not yet occurred?

Is it conceivable that Congress intended post August 13, 1946, wrongs to come in under the broader consent of the Indian Claims Commission Act if the claimant is able to discover another wrong previous to August 13, 1946, that could be called a precedent? The court apparently thinks this is a desirable result, and no doubt it is, but it drastically modifies a carefully thought out consent to be sued. I do not think the rule of strict construction allows such a result to be achieved by attaching unprecedented meanings to words in the consent statute that are common currency among lawyers in more restricted meanings.

I was, I now realize, when I joined this court most deficient in understanding of strict construction of the consent to be sued. I have learned wisdom, not only by writing or participating in decisions that were reversed, but by my efforts towards reconstructing the history of this court. The 'generation of judges contemporary with the Tucker Act were most careful not to exceed the consents Congress had made, conservatively construed, of which history affords numerous examples. Most of the errors along that line, requiring reversal, were by circuit or district judges purportihg to exercise their concurrent under $10,000 jurisdiction. They were presumably less aware of congressional intent in the Tucker Act. There is no more need now than then for our heads to be constantly bloodied in course of efforts to exercise jurisdiction we do not possess. Decisions to "fix up” defective legislation are particularly unfortunate when they deal with the consent to be sued. On the other hand, a corollary I think is that it is our duty to say so when we see a statute (including a consent to suit statute) as defectively drafted, rather than try to extol it as the summit of wisdom, Blackstone fashion. The court’s opinion does a brilliant job along this latter line: no one can read it and not see that corrective *40 legislation is urgently needed. We must have confidence in Congress. It is accessible to Indian claimants, and I think, if we construe the involved consent to be sued as it was written, the plaints of any Indian claimant aggrieved thereby will be heard in Congress and better legislation will ensue.