"Rancherías are numerous small Indian reservations or communities in California, the lands for which were purchased by the Government (with Congressional authorization
How later courts described this case
- "Rancherías are numerous small Indian reservations or communities in California, the lands for which were purchased by the Government (with Congressional authorization
- rejecting government’s argument that it had “considerable discretion”
Written by the judges who cited it.
The opinion
NICHOLS, Judge,
concurring:
I concur because I cannot urge the panel not to follow the recent en banc decision Mitchell v. United States, ante at 1, 664 F. 2d 265 . I dissented therein and of course nothing said by the court here eases my difficulties. The law of this court now is, however, if a statute creates or recognizes the United States as general trustee of Indian property, that legislation founds a substantive money claim for breach of that trust which the Indian beneficiary may vindicate by a suit for breach of trust in this court under 28 U.S.C. § 1491 , and 28 U.S.C. § 1505 , if applicable; this notwithstanding that no statutory language expressly or impliedly states that the United States will make good any adverse consequences of the errors or malfeasance of its *143 officers in the premises, despite that the United States is not subject to suit unless it consents to be sued, and despite the rules as to how to identify such consent, spelled out by precept and example in cases such as United States v. Testan, 424 U.S. 392 (1976). There is no use debating the matter again at this level. We await reactions elsewhere, and if there are none, or none adverse, I shall be happy to be proven wrong. This righting of injustice is a thing I would wish us to be doing more of, and these claimants have an appealing case.
It is important, however, to note that a trust is a trust, and a suit on a trust theory must claim a breach of the trustee’s peculiar duties. For a trust to exist there must be identifiable a trustee, a res and a beneficiary. A trustee can be guilty of actionable misconduct on a trust theory only with respect to the res in his possession and control, and he owes no duty to the beneficiary dehors the res. A trustee is not qua trustee a social worker, a guardian, a pedagogue, or a physician. Any of these might be under a legal duty, e.g., to warn a relief client, a ward, a student, or a patient, of the evils of drink, but a trustee would not, nor would he be liable if the unwarned beneficiary (not his relief client, ward, student, or patient) became an alcoholic (always assuming the trust res was not a cellar of fine old booze, which the beneficiary consumed at an excessive rate). In the instant suit, as in many others, the petition reveals a state of complete confusion as to the capacity in which the United States misconducted itself and the source of the duties for breach of which it is to be held liable. This confusion to some extent carried over into our first Duncan opinion. The court’s opinion now embodies a commendable effort to straighten the matter out, but I do not labor under the delusion it will not be necessary to address it again.
Why the United States should be liable as trustee and not as case worker, guardian, pedagogue, or physician, is a question that, no doubt, is neither here nor there at present. Once the trustee’s liability is firmly established, or reestablished, our systematizers can go to work on the other problems.