The opinion
MILLER, Judge
(concurring):
I agree with' the result reached in the majority opinion on the basis of the persuasive analysis of P.L. 280 ( 28 U.S.C. § 1360 ) and determination that it does not apply to controversies such as the instant case, involving, as it does, “trust or restricted property.”
Such being the case, the lower court’s decision must be affirmed, either because appellee’s action is not barred under 28 U.S.C. § 2415 or, as alternatively contended by appellee, because there is no applicable statute of limitations. Accordingly, it is unnecessary to decide whether 28 U.S.C. § 2415 is applicable.
However, the majority unnecessarily takes up the question of the applicability of 28 U.S.C. § 2415 and then, erroneously in my judgment, decides that it is applicable. Having been persuaded by legislative history in reaching its decision with respect to 28 U.S.C. § 1360 , the majority declines to abide by the legislative history, not to mention the plain meaning, of 28 U.S.C. § 2415 and, instead, invokes the federal instrumentality doctrine used by this court in deciding two cases under the federal “anti-injunction” statute ( 28 U.S.C. § 1341 ). Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184 (9th Cir. 1971), cert. denied, 405 U.S. 933 , 92 S.Ct. 930 , 30 L.Ed.2d 809 (1972); Moses v. Kinnear, 490 F.2d 21 (9th Cir. 1973).
In Moses v. Kinnear, supra, this court held that the federal instrumentality doctrine applies where the United States is not a party plaintiff, if the suit (to enjoin imposition of state excise taxes) could have been brought by the United States and is in fact brought by parties who could properly be co-plaintiffs with the United States, citing Agua Caliente, supra. In the latter case, this court held that an Indian, as the beneficial owner of lands held by the United States in trust, had a right acting independently of the United States to sue (to enjoin imposition of a state possessory interest tax) to protect his property interests, citing Poafpybitty v. Skelly Oil Co., 390 U.S. 365 , 88 S.Ct. 982 , 19 L.Ed.2d 1238 (1968). The court quoted from Federal Indian Law, Dept, of Int., 1958, page 846, that the federal instrumentality doctrine in its application to Indians and Indian property—
*473 is founded upon the premise that the power and duty of governing and protecting tribal Indians is primarily a Federal function, and that a State cannot impose a tax which will substantially impede or burden the functioning of the Federal Government.
In Poafpybitty, supra, the Supreme Court held that Indian lessors under 25 U.S.C. § 396 (of an oil and gas lease of allotted land held under trust patents issued by the United States) had standing to sue upon a violation of the lease; and it said (at 374, 88 S.Ct. at p. 986 ) that “the Indian’s right to sue should not depend on the good judgment or zeal of a government attorney.” In considering the General Allotment Act of 1887 ( 25 U.S.C. §§ 331-358 ) and the restrictions on the Indian’s control of land under regulations of the Interior Department, the Court stated (at 368-69, 88 S.Ct. at 984 ):
In our view, these restrictions on the Indian’s control of his land are mere incidents of the promises made by the United States in various treaties to protect Indian land and have no effect on the Indian’s capacity to institute the court action necessary to protect his property. In order to fulfill these national promises to safeguard Indian land and at the same time “to prepare the Indians to take their place as independent, qualified members of the modern body politic,” Board of County Comm’s v. Seber, 318 U.S. 705, 715 [ 63 S.Ct. 920, 926 , 87 L.Ed. 1094 ] (1943), the allotment system was created with the Indians receiving ownership rights in the land while the United States retained the power to scrutinize the various transactions by which the Indian might be separated from that property. . . . This dual purpose of the allotment system would be frustrated unless both the Indian and the United States were empowered to seek judicial relief to protect the allotment. ... In Heckman [Heckman v. United States, 224 U.S. 413 , 32 S.Ct. 424 , 56 L.Ed. 820 (1912)], an action brought by the United States to set aside an improper conveyance of restricted land, this Court realized that the allotment system created interests in both the Indian and the United States. “A transfer of the allotments is not simply a violation of the proprietary rights of the Indian. It violates the governmental rights of the United States.” [Footnote omitted.]
Thus, in the above cases, it is seen that the federal instrumentality doctrine was applied, in the absence of any indication by Congress to the contrary, to aid Indians in the protection of their property rights.
What the majority does here, instead, is apply the federal instrumentality doctrine to hinder Indians in the protection of their “trust or restricted property” rights by subjecting their judicial remedies to the periods of limitation imposed by 28 U.S.C. § 2415 , in the absence of any indication by Congress that this was intended and in the face of legislative history completely to the contrary.
As shown in footnote 9 of the majority opinion, the Associate Solicitor for Indian Affairs, Department of the Interior (which recommended the amendments), at the Senate hearings on the 1972 amendments to 28 U.S.C. § 2415 , stated that it was an “erroneous assumption” that section 2415 is a statute of limitations which would apply to the tribe itself if it filed its own suit. ‘.‘We don’t read section 2415 that way,” he said. This is not surprising. The bill (H.R. 13652), which became P.L. 89-505 in 1966 and added section 2415, was introduced as a bill “to establish a statute of limitations for certain actions brought by the Government.” 112 Cong.Rec. 5884 (1966). It was so described before passage by the House of Representatives. Id. at 12262 . Prior to passage in the senate, the manager of the bill, Senator Ervin stated (Id. at 14378):
Mr. President, under existing law the Federal Government is not subject to any statute of limitations, unless there is a special statute so providing in specific instances.
*474 H.R. 13652 would establish statutes of limitations for certain types of actions brought by the Government.
The report on the bill from the Senate Committee on the Judiciary summed up the reason for the bill as follows (2 U.S. Code Cong. & Admin.News 2509 (1966)):
In recommending this legislation, the committee feels that it will provide a greater fairness as regards private individuals who deal with the Government while adequately providing for the interests of the Government. The Government will be barred from asserting old and stale claims in the courts and the necessity for the early assertion of claims will require increased efficiency in Government claims proceedings.
The amendments with which this case is concerned were added in 1972 by P.L. 92-485. The bill (H.R. 13825) was introduced as a bill “to extend the time for commencing actions on behalf of an Indian tribe, band, or group.” 118 Cong. Rec. 8553 (1972). It was so described as reported to the Senate, Id. at 33048 , and as passed on the consent calendar in the Senate. Id at 34437. The report on the bill from the Senate Committee on Interior and Insular Affairs (S.Rep.No.92-1253) contained the following statement (2 U.S.Code Cong. & Admin.News 3593 (1972)):
The Interior Department in its report on the legislation . . . further stated in its report that—
the Bureau of Indian Affairs and the Solicitor’s Office of the Department have not been able to perform the necessary work to identify all of these wrongs and then develop factual information necessary to get litigation filed.
Prior to passage by the House, the manager of the bill, Mr. Danielson, stated (118 Cong.Rec. 28116-17 (1972)):
Mr. Speaker, the enactment of the bill H.R. 13825, as amended by the committee, is necessary to make sure that the U.S. Government will have adequate time to identify, prepare, and file certain actions in behalf of Indians. The actions covered by the committee amendment are those which occurred prior to the enactment of a law on July 18, 1966, which for the first time limited the time for actions brought in behalf of Indians by the United States against third parties.
Section 2415 of title 28 of the United States Code as added to that title by the act of July 18, 1966, imposed a statute of limitations on tort or contract suits brought by the United States on its own behalf and in carrying out its trust responsibilities to Indians.
The Interior Department advised the committee that the situation concerning these actions is such that Indians are concerned that the present statutory limitation might bar them from recovering damages for many wrongs they have suffered. The committee has received correspondence from Indian groups expressing this concern over the situation. The Department further stated in its report that the Bureau of Indian Affairs and the Solicitor’s Office of the Department have not been able to perform the necessary work to identify all of these wrongs and then develop factual information necessary to get litigation filed. Even with the help of attorneys employed by the various tribes, there are, no doubt, many causes of action which have not been identified. This inability to prosecute the present claims of Indians will work a hardship on tribes all over the country and may result in a considerable loss to Indians through no fault of their own, losses which Indians can ill afford because of their low position on the economic scale. This situation clearly requires enactment of the extension provided in the substitute language proposed by the Department of the Interior. In commenting on the need for the legislation, the Department noted that it is now in position to take effective action in discovering and prosecuting these claims. .
*475 As has been stated in the report, the potential claims which would be affected by the amendments of this bill are those which have not been identified. Since these are actions which would be filed by the United States in behalf of Indians, it would, of course be necessary for the Government to develop the factual information in connection with each matter before filing the action.
It is further to be noted that section 2415 appears under Chapter 161 of the United States Code, which is entitled: “UNITED STATES AS PARTY GENERALLY.” 1970 United States Code (Supp. II, 1972) at 751. The section itself is shown (at 752) as follows: “§ 2415. Time for commencing actions brought by the United States.”
Finally, the majority opinion cites Fort Mojave Tribe v. Lafollette, 478 F.2d 1016 (9th Cir. 1973) 1 in support of the proposition that Indians may sue on their own behalf with respect to property interests held in trust for them by the United States, even though the United States could have sued independently. That proposition, in absence of a contrary intent by Congress, is well established by Poafpybitty, supra. However, the. holding in Fort Mojave Tribe, supra, was premised on a conclusion that Congress intended 28 U.S.C. § 1362 to authorize an Indian tribe to bring suit in federal court to protect its federally derived property rights in those situations where the United States declines to act. Here the majority opinion indicates its approval of the trial court’s express refusal to accept appellee’s contention that the legislative history of that statute should be read into 28 U.S.C. § 2415 because, as the trial court said:
there has been no showing that both . . . 28 U.S.C. § 2415 and . . 28 U.S.C. § 1362 were considered by Congress either simultaneously or in light of one another. Congress was clearly addressing different problems in the two statutes and therefore its comments in the one instance are not necessarily applicable to the other.
In view of the foregoing, I conclude that 28 U.S.C. § 2415 does not apply to the instant case.
. Also cited is Skokomish Indian Tribe v. France, 269 F.2d 555 (9th Cir. 1959), which involved an executive order based on a treaty.