Gila River Pima-Maricopa Indian Community v. The United States

DAVIS, Judge

(concurring):

Throughout the nation’s history there have always been some individuals, usually but a handful, who have been sensitive, in the large, to the injuries done to the Indians’ interests and way-of-life by our course of westward settlement. The number of the concerned has been growing and, over the years, there have been various efforts at some sort of redress. The Indian Claims Commission Act of 1946 is a major reflection of this trend. In recent years recognition of the total shape of the harm done by our national Indian policy has become both deeper and more, widespread. But it would be wrong for judges to read into the Indian Claims Commission Act, passed almost twenty-five years ago, currents of thought which are emerging today but were not infused into that 1946 statute. The Act was not designed to grant compensation for all the detriment accruing to the Indians by our ongoing policy toward them but, rather, had the more limited goal of paying for specific deprivations of land or property or rights protected by treaty, *1201 statute, or then-existing law. The instances cited in the Congressional history are of that kind. There is no intimation at all in the legislative background that the “fair and honorable dealings” clause was a catch-all allowing monetary redress for the general harm —psychological, social, cultural, economic — done the Indians by the historical national policy of semi-apartheid.

To the extent they escape the prohibition against claims for individual injury, 1 appellant’s petitions seek a remedy for the generalized harm which the Claims Commission Act does not cover. The complaint is that the Federal Government has destroyed Indian peoplehood by failing to provide proper education, medical care, and self-government. This is a charge which could undoubtedly be brought by all Indian tribes and groups, but it is significant that appellants are the only ones who have sought to make it under the 1946 Act. That type of generalized “reparations” for a traditional policy, accused of aborting Indian development, Congress has not yet granted.

I do not join the court’s discussion, in the latter part of its opinion, of guardianship and “special relationship” because I do not believe that that is the nub of the problem before us, and also because I would avoid the danger that that rationale could be misused in the future to deny recovery for claims for specific injuries truly redressable under the Claims Commission Act. My position is that, even if a “special relationship” did exist as to the matters on which petitioners sue, Congress did not intend in this Act to give redress for that type of injury. I do agree, however, with the court’s rejection, in the first part of its opinion, of the Commission’s holding that there can be no judicial establishment of a standard of care in providing educational, health, and governmental services.

. In the process of legislative consideration of the measure which ultimately became the Indian Claims Commission Act, a prominent spokesman for the Indians (Mr. Ernest Wilkinson) twice objected, in their behalf, to allowing the Government’s educational expenses as offsets to awards, on the ground that such educational expenses were largely for individual rather than tribal benefit. See Hearings on S.3083, 76th Cong., 3d Sess. (1940), p. 83; Hearings on H.B..4496, 79tli Cong., 2d Sess. (1946). The Act bars the offset, among other things, of “agency or other administrative, educational, health” expenses, 25 U.S.C. § 70a.