Petition — United States v. Mitchell

a

In the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

HELEN MITCHELL, ET AL.

,"

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

WADE H. McCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

KENT L. JONES

Assistant to the Solicitor General

ROBERT L. KLARQUIST

JOSHUA I. SCHWARTZ

Attorneys

Department of Justice

Washington, D.C. 20530

Page

lank acaplihiiinsisvbinincinninncene 1

"FASE aCe 1

Need ediawiorenehareeninananee 2

EIR Ee Oe 2

TE AER OY eT 3

Reasons for granting the petition -................... 7

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salah aiAiptlencandiimatenions la

CITATIONS

Cases:

Cherry v. United States, No. 73-77 (Ct.

SS 13

Duncan v. United States, No. 10-75 (Ct.

I is ccincensinnmeeenessdeswores 13

Eastport S.S. Corp. v. United States, 372

SE REE TE Se 7

Jacobs v. United States, 290 U.S. 13........ 10

Mattz v. Arnett, 412 U.S. 481 ‘ 11

McKay v. Kalyton, 204 U.S. 458 .............. 12

Naganab v. Hitchcock, 202 U.S. 473........ 9

Seminole Nation v. United States, 316

an 12

United States v. Creek Nation, 295 U.S.

SE ASCE EE ye 10, 12

United States v. Kagama, 118 U.S. 375.. 12

United States v. King, 395 U.S. 1 ............ 7

United States v. Mason, 412 U.S. 391...... 12

United States v. Testan, 424 U.S. 392.... 6, 7, 8,

9, 10

Cases—Continued Page

Whiskers v. United States, Civ. No. C

314-73 (D. Utah, Mar. 22, 1977), ap-

peal pending, No. 77-1620 (10th Cir.) .. 10

Constitution and statutes:

United States Constitution, Fifth Amend-

I scscniiionsace seca eidlaciataie 10

Act of June 25, 1910, ch. 481, 36 Stat.

ae ee I I a ccdetictspsindactcientneneenets 4,11-12

Genera] Allotment Act of 1887, ch. 119,

24 Stat. 388, 25 U.S.C. 331 et seq.:

Sections 1-5, 25 U.S.C. 331-348........ 4

Section 5, 25 U.S.C. 348 - 2, 4, 10

Indian Reorganization Act of 1934, ch.

576, 48 Stat. 984, 25 U.S.C. 461 et seq.:

25 U.S.C. 462 . 4 4

25 U.S.C. 466 -... 5, 12

Southern Paiute Distribution Act, Pub.

L. No. 90-584, 82 Stat. 1147 -.............. 10

a ciasieintaaineinbinns 9

28 U.S.C. 1331 (a) ee 9

EE I fics snecadacessntoes 9

6

6

ae 3,

“ee 3,

Miscellaneous:

13 Cong. Rec. (1882) :

eT RE ea 11

Il

Miscellaneous—Continued Page

15 Cong. Rec. (1884) :

I I ac cchesictndndasieinanncoene 11

EINER RCN EIEN SRE 11

I C. Kappler, Indicn Affairs (2d ed.

PTE. sesncrrichiinlabdienca cabana alana 4

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

HELEN MITCHELL, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Claims

in this case. ‘

OPINION BELOW

The opinion of the Court of Claims (App., infra,

la-17a) is reported at 591 F.2d 1300.

JURISDICTION

The decision of the Court of Claims was filed on

January 24, 1979. On April 19, 1979, The Chief

Justice extended the time for filing a petition for a

writ of certiorari to and including May 24, 1979.

(1)

2

The jurisdiction of this Court is invoked under 28

U.S.C. 1255(1).

QUESTION PRESENTED

Whether the United States is answerable in money

damages for alleged breaches of trust in connection

with the management of forest resources situated on

lands allotted to individual Indians under the General

Allotment Act of 1887.

STATUTES INVOLVED

1. Section 5 of the General Allotment Act of

1887, ch. 119, 24 Stat. 389, 25 U.S.C. 348, provides

in pertinent part:

Upon the approval of the allotments pro-

vided for in this act by the Secretary of the

Interior, he shall cause patents to issue therefor

in the name of the allottees, which patents shall

be of the legal effect, and declare that the United

States does and will hold the land thus allotted,

for the period of twenty-five years, in trust for

the sole use and benefit of the Indian to whom

such allotment shall have been made * * * and

that at the expiration of said period the United

States will convey the same by patent to said

Indian * * *, in fee, discharged of said trust

and free of all charge or incumbrance whatso-

ever: Provided, That the President of the United

States may in any case in his discretion extend

the period. And if any conveyance shall be made

of the lands set apart and allotted as herein pro-

vided, or any contract made touching the same,

before the expiration of the time above men-

3

tioned, such conveyance or contract shall be abso-

lutely null and void: * * *.

2. 28 U.S.C. 1491 provides in relevant part:

The Court of Claims shall have jurisdiction

to render judgment upon any claim against the

United States founded either upon the Constitu-

tion, or any Act of Congress, or any regulation

of an executive department, or upon any express

or implied contract with the United States, or

for liquidated or unliquidated damages in cases

not sounding in tort.

3. 28 U.S.C. 1505 provides:

The Court of Claims shall have jurisdiction

of any claim against the United States accruing

after August 13, 1946, in favor of any tribe,

band, or other identifiable group of American

Indians residing within the territorial limits of

the United States or Alaska whenever such claim

is one arising under the Constitution, laws or

treaties of the United States, or Executive or-

ders of the President, or is one which otherwise

would be cognizable in the Court of Claims

if the claimant were not an Indian tribe, band

or group.

STATEMENT

1. In four actions consolidated before the Court

of Claims, respondents seek to recover damages from

the United States for the alleged mismanagement of

timber resources on lands allotted to individual In-

dians from the Quinault Reservation in the State of

Washington. The respondents are 1,465 individuals

owning interests in such allotments, the Quinault

4

Tribe which now holds portions of the allotted lands,

and an unincorporated association of Quinault Reser-

vation allottees.

The Quinault Reservation was established in 1873

by Executive Order. I C. Kappler, Indian Affairs 923

(2d ed. 1904). Between 1905 and 1935 the entire

Reservation was allotted to individual Indians under

the General Allotment Act of 1887, ch. 119, 24 Stat.

388, 25 U.S.C. 331-348. Section 5 of the Act, 25

U.S.C. 348, provided that the United States would

“hold the land thus allotted, for the period of twenty-

five years, in trust for the sole use and benefit of the

Indian to whom such allotment shall have been made

* * *” This statutory language was reproduced on

the deed given to each allottee. The period during

which the United States was to hold the land thus

allotted was subsequently extended indefinitely by the

Indian Reorganization Act of 1934, ch. 576, 48 Stat.

984, 25 U.S.C. 462.

The allotments from the Quinault Reservation con-

sisted primarily of forest lands. The forest resources

on the allotted lands have been managed by the De-

partment of the Interior, which has sold the timber

from individual allotments and managed the revenue

from the sales. The Secretary of the Interior was

authorized by the Act of June 25, 1910, ch. 431, 36

Stat. 857, 25 U.S.C. 406, to approve the sale by the

“owner” of timber on any Indian land “held under

a trust or other patent containing restrictions on

alienations * * *.” In approving such sales, the Sec-

retary is directed to consider the state of growth of

5

the timber and the present and future financial needs

of the allottee and his heir; the Secretary is author-

ized to charge an administrative fee for his services.

Ibid. Since 1934, the Secretary has been directed to

adhere to the principles of sustained-yield forestry

on Indian forest lands under his supervision. 25

U.S.C. 466.

Respondents alleged that the Secretary has engaged

in several improper practices in connection with his

management of timber lands allotted from the Quin-

ault Reservation under the General Allotment Act.

They allege that he has (App., infra, 2a-3a n.4):

(1) failed to obtain a fair market value for

timber sold;

(2) failed to manage timber on a sustained yield

basis;

(3) failed to obtain payment for some mer-

chantable timber;

(4) failed to develop a proper system of roads

and easements, and exacted improper

charges from allottees for roads;

(5) failed to pay interest on certain funds;

(6) paid insufficient interest on certain funds;

(7) exacted excessive administration fees from

allottees.

They contend that they are entitled to recover in

money damages for the alleged misdeeds because the

Secretary’s actions have breached the fiduciary duty

owed them by the United States as trustee of the

allotted lands. |

6

” 2. The United States moved to dismiss respond-

ents’ actions in the Court of Claims on the ground

that the United States had not consented to these

suits or otherwise waived its sovereign immunity in

respect of such claims. The Court of Claims, sitting

en banc, denied the government’s motion. The court

held that, by enacting the General Allotment Act,

Congress created a cause of action for damages

against the United States in favor of Indian allottees

whenever they can show a “breach of trust” by the

government in the management of their lands (App.,

infra, 6a).' The court concluded that

the congressional declaration of trust “can fairly

be interpreted as mandating compensation by the

Federal Government for the damage sustained”

because of a proven breach of trust.

Ibid., quoting United States v. Testan, 424 U.S. 392,

400 (1976).

1 The court concluded that “breach of trust” claims brought

under the General Allotment Act by individual allottees are

within its jurisdiction under 28 U.S.C. 1491 as claims founded

upon an “Act of Congress,” ibid. (see App., infra, 4a-6a).

The court stated that similar claims brought by the indian

tribe are therefore within its jurisdiction under 28 U.S.C.

1505 (App., infra, 4a, 7a). The court did not consider whether

individual claims would be within its jurisdiction as claims

“for liquidated or unliquidated damages in cases not sounding

in tort,” 28 U.S.C. 1491 (see App., infra, 5a). Nor did the

court reach the question whether the Quinault Allottees Asso-

ciation is a “tribe, band or other identifiable group of Ameri-

can Indians,” whose claims lie under Section 1505.

7

REASONS FOR GRANTING THE PETITION

The decision of the Court of Claims is based on a

misapplication of United States v. Testan, 424 U.S.

392 (1976). The ruling threatens significantly to

enlarge the government’s liability to suit in an area

where consent has not been given.’

1. In United States v. Testan, supra, 424 U.S. at

399, quoting United States v. King, 395 U.S. 1, 4

(1969), this Court reiterated the basic principle

“that a waiver of the traditional sovereign immunity

‘cannot be implied but must be unequivocally ex-

pressed.’”” The Court held that where, as here, the

claim for money damages is based on a statute, there

is no waiver of immunity unless the statute “ ‘in

itself * * * can fairly be interpreted as mandating

compensation by the Federal Government for the

damage sustained.’” 424 U.S. at 402, quoting Kast-

port S.S Corp. v. United States, 372 F.2d 1002, 1008-

1009 (Ct. Cl. 1967).°

2 We follow the terminology of the Testan opinion in speak-

ing of a failure to lift the bar of “sovereign immunity.”

Technically, it may be that the Tucker Act itself waives the

otherwise absolute immunity of the United States from being

sued eo nomine when another statute creates a right of action

in damages against the government for breach of the statu-

tory command. But it cannot matter how the point is articu-

lated. It is entirely clear that no recovery can be had under

the Tucker Act in respect of a claim “founded on * * * an

Act of Congress” unless the statute invoked, construed in light

of the doctrine of sovereign immunity, can be said to make

the United States answerable in damages for the performance

(or non-performance) of federal officials under the cited

provision.

8 The Court noted in Testan that, as applied to claims based

on an “Act of Congress,” the Tucker Act is “only a juris-

8

Although the Court of Claims agreed that the

General Allotment Act does not expressly provide

that damages may be “recovered for breach of the

trust,” the court reasoned that this “is the necessary

inference from the statute” (App., infra, 7a). The

court reasoned that denying a remedy in damages

for breach of trust would mean that “there is in

effect no real redress at all for a departure from the

standards Congress imposed on the Government in

the General Allotment Act” (ibid.). As we will show,

the decision of the Court of Claims is based on a mis-

understanding of Testan and of the purposes of the

General Allotment Act.

a. There is nothing in Testan to support a conclu-

sion that a court may “infer” a waiver of immunity

from the nature of the duty that Congress has im-

posed. To the contrary, Testan reiterates that the

waiver must be “unequivocal,” 424 U.S. at 399, and

that a statute claimed to effect a waiver must “in

itself * * * fairly be interpreted as mandating com-

pensation” (id. at 402; emphasis added). Whatever

dictional statute * * *.” 424 U.S. at 398, 400. The Court

rejected the claim that the Tucker Act waived the sovereign

immunity of the United States for money damage claims

based on the violation of statutory duties. [bid.; see id. at 400-

401. But see note 2, supra. In this regard, the Court dis-

tinguished claims under the Tucker Act that are based on

contract or for money “improperly exacted or retained.” 424

U.S. at 400, 401. But none of respondents’ claims, with the

possible exception of the claim based on excessive administra-

tion or road fees (App., infra, 18a-14a n.19), are for money

improperly exacted or retained. Nor are any of the claims

arguably founded on an “express or implied contract with the

United States.”

9

substantive duties the General Allotment Act may be

said to have imposed, it is plain that nothing in the

statute itself even considers, much less mandates,

that money damages must be available as a remedy

for a breach of its obligations.

Even though the General Allotment Act does not

purport to establish a cause of action .. damages for

violations of its duties, the Court of Claims con-

cluded that such a remedy necessarily must be in-

ferred because otherwise there are no suitable means

of enforcing the Act. This is a non sequitur. In

Testan, this Court rejected “as unsound” the claim

that a statute establishing substantive rights “of ne-

cessity create[s] a waiver of sovereign immunity

such that money damages are available to redress

their violation.” 424 U.S. at 400-401. Moreover, al-

lottees are not wholly without remedies to protect

their interest in the allotted lands. Alleged violations

of “trust” duties under the General Allotment Act

may be remediable by injunctive or mandamus ac-

tions against the Secretary under 28 U.S.C. 1331(a),

1361. See also 5 U.S.C. 702. Furthermore, actions

* To be sure, in Naganab v. Hitchcock, 202 U.S. 473 (1906),

the Court dismissed as an unconsented suit against the United

States an action by allottees to enjoin the Secretary from

implementing regulations that would have prohibited certain

exploitive forestry practices on allotted lands. We assume,

however, that the authority of that case—insofar as it bars

injunctive relief—has been eroded by subsequent decisions

and legislation, including 5 U.S.C. 702. On the other hand,

Naganab may remain instructive in its holding that, at the

time, there was “no Act of Congress authorizing [the] action”

(202 U.S. at 476). This indicates the Court’s view that the

10

by the Secretary that constitute an appropriation of

the allotted lands may be remediable in a suit for

damages under the Fifth Amendment. See Testan

v. United States, supra, 424 U.S. at 401; United

States v. Creek Nation, 295 U.S. 103, 109-110

(1935); Jacobs v. United States, 290 U.S. 13, 16

(1933). Here, as in Testan, supra, 424 U.S. at

403: °

[t]he situation * * * is not that Congress has

left the respondents remediless, * * * but that

Congress has not made available * * * the rem-

edy of money damages * * *.

b. The legislative history of the General Allot-

ment Act supports the conclusion that the statute

does not waive sovereign immunity for any “breach

of trust” in connection with federal administration

of the allotted lands. In determining to “hold the

land thus allotted * * * in trust for the sole use and

benefit of the Indian to whom such allotment shall

have been made * * *,” 25 U.S.C. 348, Congress in-

s

General Allotment Act itself did not waive sovereign im-

munity.

5 In Whiskers v. United States, Civ. No. C 314-73 (D. Utah,

Mar. 22, 1977), appeal pending, No. 77-1620 (10th Cir.), the

district court concluded that the Southern Paiute Distribution

Act, Pub. L. No. 90-584, 82 Stat. 1147, did not waive the

sovereign immunity of the United States for claims based on

an alleged trust responsibility under the Act. The court noted

(slip op. 6) that, even if the Act purported to create a trust

duty, there is nothing in the Act that establishes a right to

money damages for breach of trust, and there is thus no

waiver of sovereign immunity urder Testan.

11

tended that the allotments would serve the function

of homesteads for the allottees and would be occupied

by them for personal use in agriculture or grazing.

See Mattz v. Arnett, 412 U.S. 481, 486 (19738); 18

Cong. Rec. 3211 (1882) (Sen. Dawes) (the allottee

is to be “the occupant of the land and enjoy all its

use * * *”), The government was not expected to

undertake management responsibilities in connection

with the allotted lands; rather, the purpose for which

the United States held title to the land for the allot-

tees was (a) to restrain improvident alienation of

the land by the allottees and (b) to afford an immu-

nity from state taxation for the allotted lands. See

13 Cong. Rec. 3211-8212 (1882) (Sen. Dawes); 15

Cong. Rec. 2240-2242 (1884) (remarks of Senators

Dawes, Coke and Conger) ; 15 Cong. Rec. 2278-2279

(1884) (remarks of Senators Miller, Coke and

Dawes). The Court of Claims’ broad conclusion that

a damage remedy for “breach of trust” is “man-

date[d]” as a means of enforcing the Act is incon-

sistent with the narrow objectives that Congress

sought to accomplish in enacting this legislation.°

Subsequent to enactment of the General Allotment

Act, Congress authorized the Secretary to supervise

sales of timber on allotted lands and other Indian

lands “held under a trust or any other patent con-

taining restrictions on alienations * * *.” 25 U.S.C.

*®A very different case would be presented if the claim

were that the United States had misused its position as title

holder to sell the allottee’s land and had failed to account.

See also note 3, supra.

12

406. See also 25 U.S.C. 466. But, significantly, Con-

gress did not distinguish between “trust” lands and

other restricted lands. No doubt for that reason, the

Court of Claims abjured any reliance (App., infra,

12a) on the management statutes in ruling broadly

that the General Allotment Act waives sovereign im-

munity for “breach of trust” claims by Indian allot-

tees (id. at 6a).’

2. The decision of the Court of Claims is unprece-

dented in its broad conclusion that sovereign immu-

™There are, of course, numerous decisions in this Court

that refer to the fiduciary or guardianship responsibilities of

the United States in its dealings with Indian tribes. F.g.,

United States v. Kagama, 118 U.S. 375, 384 (1886) ; McKay

v. Kalyton, 204 U.S. 458, 469 (1907) ; United States v. Creek

Nation, supra, 295 U.S. at 109-110; Seminole Nation v. United

States, 316 U.S. 286, 296-297 (1942). None of these cases,

however, have presented and confronted the question whether

the United States has waived its sovereign immunity for

“breaches of trust” in connection with lands allotted under the

General Allotment Act. In United States v. Mason, 412 US.

$91, 8398 (1973), the United States did not argue that it was

immune to a suit for money damages by allottees who claimed

that the government committed a breach of trust by failing

to resist state tax assessments on the allotted lands. The gov-

ernment’s defense on the merits was sufficient in that case, id.

at 392, and sovereign immunity was not raised. It should

be noted, however, that one of the two purposes for which

Congress held the title of allotted lands “in trust” was to

protect the lands from state taxation. See page 11, supra.

A failure to accomplish that objective may, in some circum-

stances, be a breach of the limited duty established by the

Allotment Act, and thus arguably may support an inference,

in this narrow context, that sovereign immunity was waived.

But see pages 7-12, supra. In this case, however, the Court of

Claims inferred a waiver of immunity as to duties that the

Act did not impose.

13

nity has been waived as to claims for money damages

brought by allottees under the theory of “breach of

trust.” The ramifications of such a broad holding are

difficult to anticipate with certainty, though it seems

plain that they are serious. Damages claimed in this

suit alone may aggregate $100 million, and many

similar claims may be anticipated.* The question

presented in the petition is thus of substantial im-

portance and warrants review by this Court.

8 See, e.g., Duncan v. United States, No. 10-75 (Ct. Cl. Apr.

18, 1979), slip op. 6, in which the Court of Claims relied on

the decision in this case in concluding that the court may

award damages for “breach of trust” in the administration

of Indian lands that are not subject to the General Allotment

Act. See, also, Cherry v. United States, No. 73-77 (Ct. Cl.

Feb. 21, 1979), slip op. 6-7 (opinion of the court), 12-14

(Bennett, J., concurring and dissenting), in which the court

likewise relied on its Mitchell decision in inferring an enforce-

able trust applicable to benefits paid to dependents of service-

men held as prisoners of war.

14

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

KENT L. JONES

Assistant to the Solicitor General

ROBERT L. KLARQUIST

JOSHUA I. SCHWARTZ

Attorneys

May 1979

la

APPENDIX

~ IN THE UNITED STATES COURT OF CLAIMS

Nos. 772-71, 773-71, 774-71 and 775-71

(Decided January 24, 1979)

HELEN MITCHELL, ET AL.

v.

THE UNITED STATES

Before FRIEDMAN, Chief Judge, DAvis, NICHOLS,

KUNZIG, BENNETT and SMITH, Judges, en banc.

ON DEFENDANT’S MOTION TO DISMISS

FOR LACK OF JURISDICTION

DAVIS, Judge, delivered the opinion of the court:

These connected suits’ by individual Indians and

two Indian groups present claims for damages said

to arise from the Government’s management and dis-

position of the claimants’ property. The principal

plaintiffs are (1) 1465 individuals owning interests

in Indian trust allotments on the Quinault Reserva-

tion in the State of Washington, and (2) the Quin-

ault Tribe which now has about 4,000 acres on the

1 There are four cases which have been consolidated.

PEELED BP I SE

2a

Reservation.” The Reservation, consisting mainly of

forest land, was established in 1873. Over a number

of years, the Government, acting primarily under

the General Allotment Act of 1887, 24 Stat. 388, 25

U.S.C. §§ 331-358 (1976), allotted the whole Reser-

vation in trust to individual Indians. About a third

of the Reservation has by now gone out of trust, but

a very substantial amount has remained in trust

status.* The Government, through the Department

of the Interior, has managed these tracts, selling the

timber, handling the sale of individual allotments,

and taking general care of the Indians’ proceeds and

monies from the tracts.

These suits accuse the defendant of various acts of

mismanagement alleged to constitute breaches of

trust for which the Government is liable in damages.*

2 Also a plaintiff is the Quinault Allottees Association, an

unincorporated association to protect and promote the inter-

ests of Quinault Reservation allottees.

8 For a history of the formation of the Reservation and of

the allotment process, see Quinault Allottee Ass’n v. United

States, 202 Ct. Cl. 625, 629-32, 485 F.2d 1391, 1393-95 (1973),

cert. denied; 416 U.S. 961 (1974).

*In their brief, plaintiffs thus summarize their allegations

against defendant:

(1) Failure to obtain fair market value for the

allottees’ timber when it was sold either under multiple-

allotment, long-term contracts, individual allotment con-

tracts, or land-and-timber sales;

(2) Failure to manage the timber sales and harvesting

on the Reservation on a sustained yield basis and failure

to rehabilitate the land after logging;

(8) Failure to obtain any payment at all for some of

the allottees’ merchantable timber;

3a

Much was done in the cases after their filing in 1971

—discovery, considerable preparation of experts’

studies, a partial trial of three weeks duration, plans

for further trials—without any challenge to this

court’s subject-matter jurisdiction.’ However, after

the partial trial in 1977 the defendant belatedly filed

a motion to dismiss for lack of jurisdiction; the

ground was that all the mismanagement claims in

these cases rest on the theory of a breach of trust

by the defendant and that this court does not have

jurisdiction of such breach of trust claims. This is

the motion which is now before us and which we

consider. We reject the Government’s position and

(4) Failure to develop a proper road and easement

system on the Reservation and allowing improper charges

to be made to the allottees in connection therewith;

(5) Failure to pay interest on advance deposit and

other funds to the allottees;

(6) Failure to obtain sufficient interest on Indian

monies; and

(7) Excessive charges to the allottees for administra-

tive fees.

5 Nor was such a challenge made in the other Quinault

cases, earlier considered, raising parallel issues. Quinault

Allottee Ass’n Vv. United States, 197 Ct. Cl. 184, 453 F.2d 1272

(1972), 202 Ct. Cl. 625, 485 F.2d 1891 (1973) cert. denied,

416 U.S. 961 (1974) ; Capoeman v. United States, 194 Ct. Cl.

664, 440 F.2d 1002 (1971).

6 Since the question posed by defendant’s motion is juris-

dictional, we entertain it despite the Government’s failure

to raise the point earlier in the litigation. See CT. CL. R.

88 (h).

4a

hold that the court properly has jurisdiction of these

suits.’

I

Our authority to entertain the actions is invoked

under 28 U.S.C. § 1491 (1976) (insofar as the suits

are by individual Indians)* and 28 U.S.C. § 1505

(1976) (actions by or on behalf of Indian tribes,

bands or groups). Defendant’s first jurisdictional

objection is that claims based on breach of trust are

judge-made elaborations, unconnected with the Con-

stitution, statutes, treaties, regulations, executive or-

ders, or contracts—and therefore outside the con-

gressional consents-to-sue embodied in sections 1491

and 1505. We skip (without passing upon) the grant

7 Aside from any effect of the statute of limitations, an

issue which is not now before us and which we therefore do

not even reach.

828 U.S.C. § 1491 provides in pertinent part: “The Court

of Claims shall have jurisdiction to render judgment upon

any claim against the United States founded either upon the

Constitution, or any Act of Congress, or any regulation of an

executive department, or upon any express or implied con-

tract with the United States, or for liquidated or unliquidated

damages in cases not sounding in tort.”

928 U.S.C. § 1505 provides: “The Court of Claims shall

have jurisdiction of any claim against the United States

accruing after August 13, 1946, in favor of any tribe, band,

or other identifiable group of American Indians residing

within the territorial limits of the United States or Alaska

whenever such claim is one arising under the Constitution,

laws or treaties of the United States, or Executive orders of

the President, or is one which otherwise would be cognizable

in the Court of Claims if the claimant were not an Indian

tribe, band or group.”

5a

of jurisdiction over claims against the United States

“for liquidated or unliquidated damages in cases not

sounding in tort” *° because here the Indians do not

rest their case on unanchored judge-created principles

of fiduciary law but point to and rely upon specific

legislation as creating the trust relationship.

To sustain jurisdiction it is enough for us that the

General Allotment Act, 25 U.S.C. §§ 331-358 (1976),

governing the tracts involved in these cases, expressly

declares the fiduciary connection. Section 5, 25 U.S.C.

§ 348, states that the allotment-patents “shall be of

the legal effect, and declare that the United States

does and will hold the land thus allotted, for the

period of twenty-five years, in trust for the sole use

and benefit of the Indian to whom such allotment

shall have been made, or, in the case of his decease,

of his heirs * * * and that at the expiration of said

period the United States will convey the same by

patent to said Indian, or his heirs as aforesaid, in

fee, discharged of said trust and free of all charge

or incumbrance whatsoever” (emphasis added). (The

trust thus expressly established was extended first

10 This phrase appears in section 1491 but, as the court has

already pointed out, section 1505 covers the full ground of

section 1491. See Klamath & Modoc Tribes v. United States,

174 Ct. Cl. 488, 489-90 (1966).

Defendant repeats the old myth that this court has no juris-

diction over monetary claims harking back to equitable prin-

ciples. We continue to reject that incorrect proposition. See

e.g., Quinault Allottee Ass'n v. United States, 197 Ct. Cl. 184,

188 n.1, 453 F.2d 1272 (n. 1) (1972); Pauley Petroleum, Inc.

v. United States, No. 197-69, slip op. at 11-18. (Ct. Cl. Jan. 24,

1979).

6a

temporarily and then indefinitely by section 2 of the

Indian Reorganization Act of 1934, 25 U.S.C. § 462

(1976).)™

The next question is whether this statute can

ground the money claims asserted here for breach-of-

trust. We do not hesitate to hold that the congres-

sional declaration of trust in the General Allotment

Act “can fairly be interpreted as mandating compen-

sation by the Federal Government for the damage

sustained” because of a proven breach of trust. See

United States v. Testan, 424 U.S. 392, 400, 402

(1976), citing Eastport S.S. Corp. v. United States,

178 Ct. Cl. 599, 607, 372 F.2d 1002, 1009 (1967).

' There is no requirement that Congress say expressly

11 Defendant suggests that the trust created by the General

Allotment Act is solely to prevent improvident alienation of

the tract by the Indian beneficiaries, and has no other inci-

dence. But that is not what the statute says, nor is it the way

- in which the Act has been administered. The legislation states

that the Government is to “hold” the allotted land “in trust

for the sole use and benefit of the Indian” (emphasis added),

thus indicating that the Government, as trustee, is to manage

and conserve the property for the Indian, on a continuing

basis, so long as the land remains in trust. And the Interior

Department has regularly sought to fulfill that trust; it does

not confine its oversight just to sales or outright transfers

of the tract itself. See Squire v. Capoeman, 351 U.S. 1, 10

(1956). That is the nature of a trust allotment in which the

United States has fee title and the Indian has only equitable

title. See Squire v. Capoeman, 351 U.S. 1, 4 & n.5, 10 (1956).

Somewhat different is a “restricted allotment” in which the

Indian holds the fee but cannot convey it without govern-

mental approval. That was the nature of the allotment in

United States v. Bowling, 256 U.S. 484, 486-87 (1921).

Ta

that damages can be recovered for breach of the

trust.” That conclusion is the necessary inference

from the statute. It is inconceivable, for instance,

that Indian allotment-patentees whose lands were

wholly wasted by the Government could not recover

compensation in this court for such a violation of

fiduciary obligation. No other remedy would exist

since there is no administrative channel for obtaining

compensation, and prospective judicial relief by way

of injunction or mandamus (assuming such a rem-

edy exists at all) would be meaningless for damage

already done.”* The same is true of lesser breaches

of trust, leading to monetary injury which is shown

to have been incurred. If there is no remedy under

28 U.S.C. sections 1491 and 1505, there is in ef-

fect no real redress at all for a departure from

the standards Congress imposed on the Government

in the General Allotment Act. Such a result, urged

on us by the Government, is not compelled by that

12 Fastport spelled out that such “fair” interpretation in-

cluded rights to monetary recovery granted “expressly or

by implication.” See 178 Ct. Cl. at 605, 606, 372 F.2d at 1007,

1008.

18JIn contrast, in United States v. Testan, 424 U.S. 392

(1976), the Court considered that civil service employees im-

properly classified had prospective administrative remedies

under the Classification Act, which were all that Congress

provided or contemplated, especially in view of the “estab-

lished rule” that “one is not entitled to the benefit of a position

until he has been duly appointed to it.” See 424 U.S. at 402,

403-04.

8a

Act nor, in our view, would it be a correct inter-

pretation. The trust language in the statute means

that compensation can be recovered for a breach of

trust provided that Congress has consented to suit

on monetary claims, as it has in sections 1491 and

1505.

This is the stance we have consistently taken up to

now in this kind of controversy. In Klamath & Modoc

Tribes v. United States, 174 Ct. Cl. 488, 491-92

(1966), although we held that we could not order a

general accounting at the outset, we emphasized at the

same time that “[i]f, after a trial on the issue of

liability, it is held that defendant has violated its

statutory fiduciary obligations, it will be within the

jurisdiction of the court to order the defendant in

its capacity as a trustee to render an accounting for

the purpose of enabling the court to determine the

amount which plaintiffs are entitled to recover” (em-

phasis added), and that under sections 1491 and 1505

those Indian plaintiffs had ‘“‘a forum for the recovery

of any damages to which they are entitled because of

the Government’s mishandling of tribal funds and

property. No special jurisdictional act is required to

provide that relief.” See also 174 Ct. Cl. at 490-91.

Similarly, in Mason v. United States, 198 Ct. Cl.

599, 617, 461 F.2d 1864, 1874 (1972), rev’d 412

U.S. 391. (1973), the court said: “A suit against

the United States on behalf of the estate of a non-

competent Indian, for damages compensating the

estate for breach by the Government of its trust obli-

gation under a federal statute, is within 28 U.S.C.

9a

§ 1491 as a claim founded upon an Act of Congress

and for damages ‘in cases not sounding in tort.’ The

Osage Allotment Act implies that, if the Government

breaches its trust duty to the pecuniary disadvantage

of a non-competent Osage allottee, due compensation

will be paid by the United States” (citing EKastport

S.S. Corp., 178 Ct. Cl. 599, 372 F.2d 1002 (1967),

among other decisions) .“

There are also Indian cases in the same class which

we have entertained with a somewhat briefer expla-

nation of why we accepted jurisdiction. See Chey-

enne-Arapaho Tribes v. United States, 206 Ct. Cl.

340, 345, 512 F.2d 1390, 13892 (1975); Fields v.

United States, 191 Ct. Cl. 191, 196, 423 F.2d 380,

383 (1970); Capoeman v. United States, 194 Ct. Cl.

664, 666, 440 F.2d 1002, 1002 (1971); Quinault

Allottee Ass’n v. United States, 202 Ct. Cl. 625, 628,

485 F.2d 1391, 1892 (1973), cert. denied, 416 U.S.

961 (1974); Coast Indian Community v. United

States, 213 Ct. Cl. 129, 134, 152-58, 550 F.2d 6389,

639, 652-53 (1977).

Our continued acceptance of Indian claims for

breach of trust—where the existence of the trust obli-

gation is founded on a statute, treaty, executive order

or regulation, or an agreement—comports fully with

the expectation of Congress that that what is now 28

U.S.C. section 1505 (first enacted in 1946 as section

24 of the Indian Claims Commission Act, 60 Stat.

14JIn reversing on the merits, the Supreme Court did not

question this court’s jurisdiction. See United States v. Mason,

412 U.S. 391, 394 & n.6 (19738).

10a

1055) would cover the post-1946 “legal” claims (i.e.

other than purely “moral” claims) of Indian entities

“so that it will never again be necessary to pass spe-

cial Indian jurisdictional acts in order to permit the

Indians to secure a court adjudication on any misap-

propriations of Indian funds or of any other Indian

property by Federal officials that might occur in the

future.” 92 CoNnG. REc. 5313 (1946) (statement of

then Congressman Jackson, committee chairman and

principal sponsor of the Indian Claims Commission

bill in the House of Representatives). See Klamath

& Modoc Tribes v. United States, 174 Ct. Cl. 483,

488-89 (1966).* The report on the Indian Claims

Commision bill made by the House Committee on

Indian Affairs characterized the foreruner of sec-

tion 1505 as giving the Indian “the same right as

his white or black neighbor to secure a full and free

hearing in the Court of Claims, or any other appro-

priate tribunal, on any controversy with the Federal

Government that may arise in the future.” (emphasis

added). H.R. Rep. No. 1466, 79th Cong., 1st Sess. 3,

reprinted in [1946] U.S. CopE Conc. & AD. NEWS

1347, 1349. Moreover, in statements which obviously

blanketed both the past and the future, the report de-

15 Congressman Jackson also said: “The Interior Depart-

ment itself has suggested that it ought not to be in a position

where its employees can mishandle funds and lands of a

national trusteeship without complete accountability” and

“let us see that the Indians have their fair day in court so

that they can call the various Government agencies to account

on the obligations that the Federal Government assumed.” 92

Conc. REc. 5312 (1946).

lla

clared that: “If we fail to meet these obligations by

denying access to the courts when trust funds have

been improperly dissipated or other fiduciary duties

have been violated, we compromise the national honor

of the United States”; the report also observed that

the Indians’ inability at that time to obtain a day in

court “on the one hand, encourages bureaucratic dis-

regard of the rights of Indian citizens by a small

minority of governmental officials who are comforted

by the thought that there is no judicial redress avail-

able to the victims of their maladministration and,

on the other hand, gives color to grievances which

may assume tremendous proportions in the minds of

the Indians where a full and fair trial would show

that the grievance is wholly imaginary.” H.R. REp.

No. 1466, 79th Cong., 1st Sess. 5, reprinted in

[1946] U.S. CopE Conc. & AD. NEws 1347, 1351.

If we accepted defendant’s current argument, these

objectives, so plainly expressed when the predecessor

of section 1505 was adopted in 1946, could not be

fulfilled, or even advanced.** Congress would still have

to do that which it did not want or expect to do in

1946—continue to pass special jurisdictional acts or

from time to time to have to enlarge this court’s

general jurisdiction over Indian money claims. We

are justified, therefore, in concluding that Congress,

16 Breach of trust claims—founded on statute, treaty, ex-

ecutive order, regulation, or agreement—have formed a large

segment of post-1946 Indian cases under sections 1491 and

1505, and were expected in 1946 to be perhaps the main grist

of those mills.

12a

when it passed section 1505, considered that Indian

trust legislation, such as the General Allotment Act,

supplies a proper foundation for Indian monetary

suits in this court to recover compensation for proven

breaches of those trusts.”

II

Because we hold that the General Allotment Act, in

itself, sustains plaintiffs’ right to pursue their breach

of trust allegations, we do not have to consider

whether claims could be founded, in the absence of a

trust provision comparable to that in the Allotment

Act, upon the other pieces of legislation and regula-

tion invoked here by the Indians.** Plaintiffs put

17 The views of the 1946 Congress are not controlling on the

meaning and scope of the General Allotment Act which was

passed in 1887, but it is helpful to have the explicit and au-

thoritative understanding of the 1946 Congress which went

deeply into the problem of redressing wrongs against Indians

and provided judicial and quasi-judicial remedies. See NLRB

v. Bell Aerospace Co., 416 U.S. 267, 275 (1974); Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367, 380-81 & n.8 (1969) ;

FHA v. Darlington, Inc., 358 U.S. 84, 90 (1958). Of course,

the views of the 1946 Congress have greater impact on section

1505, which was first enacted by it.

18 These statutes are: 25 U.S.C. §§ 406 and 407 (1976)

(directions as to sale of timber); 25 U.S.C. §466 (1976)

(operation and management of Indian forestry units on sus-

tained-yield principles) ; 25 U.S.C. §413 (1976) (collection

of reasonable fees for work done for Indians); 25 U.S.C.

§§ 849 and 872 (1976) (issuance of fee patents to allottees or

heirs found to be competent and capable of managing their

affairs) ; 25 U.S.C. § 318a, 323-25 (1976) (concerning roads

and rights of way) ; 25 U.S.C. § 162a (1976) (investment of

13a

these forward as additional, independent sources of

jurisdiction but we do not reach that contention. For

the most part, all we need and do hold is that, in the

instant cases, account should be taken of these other

statutes in deciding whether the Government violated

its obligations as trustee under the General Allot-

ment Act. To the extent applicable, these additional

statutes furnish statutory directives—substantive

rules of conduct—which help to determine the obli-

gations and undertakings of the Federal Govern-

ment as such trustee. For the purposes of the present

cases it is irrelevant whether these other statutes, by

themselves, would also create a trust relationship if

the General Allotment Act were inapplicable. At the

least, the other legislative provisions on which plain-

tiffs rely can furnish congressional gauges of proper

trustee conduct, once it has been established, as here,

that the Government is a trustee. Defendant see us

to believe that this court cannot review discretionary

acts of government officials for arbitrariness or ca-

priciousness—even if a trust relationship exists—but

we have consistently done so in other areas and have

applied the same principle in Indian breach of trust

claims brought in this court. See Cheyenne-Arapaho

Tribes v. United States, 206 Ct. Cl. 340, 345, 512

F.2d 1390, 1892 (1975).*

tribal and individual Indian funds). Regulations have also

been issued under most of these statutes.

19 Though we do not decide whether the statutes cited in

note 18, supra, themselves create a trust relationship or other

basis for jurisdiction, we do point out that there is undoubted

l4a

III

Defendant marshals a number of decisions in sup-

port of its argument that this court lacks jurisdiction

over plaintiffs’ monetary claims for breach of trust,

but none of these citations is in point. In some, the

court thought that there was no statute, treaty, agree-

ment, regulation or order which could be read as

establishing a trust relationship or as imposing trust

obligations—unlike the provisions of the General Al-

lotment Act applicable here. See Gila River Pima-

Maricopa Indian Community v. United States, 135

Ct. Cl. 180, 187-89, 140 F. Supp. 776, 780-81 (1956) ;

Gila River Pima-Maricopa Indian Community v.

United States, 190 Ct. Cl. 790, 797-98, 427 F.d 1194,

1198, cert. denied, 400 U.S. 819 (1970) ; Skokomish

Indian Tribe v. France, 269 F.2d 555, 560 (9th Cir.

1959); Donahue v. Butz, 363 F. Supp. 1316, 1320,

1328, 1824 (N.D. Cal. 1973).

In others of defendant’s “precedents,” there was no

statute empowering the particular court to grant the

type of redress sought against the Government—un-

like 28 U.S.C. § 1491 and § 1505, authorizing mone-

jurisdiction in this court, aside from any trust relationship

under those statutes, over the claims in which plaintiffs seek

to recover their own monies retained or deducted by the

Government—unreasonable fees and service charges deducted

for work performed by the defendant; improper deduction of

road maintenance costs; and any other claims that the Gov-

ernment illegally kept some of the Indians’ own money or

property. See Eastport S.S. Corp. v. United States, 178 Ct.

Cl. 599, 605-06, 372 F.2d 1002, 1007-08.

15a

tary relief in this court for claims founded on a

statute such as the General Allotment Act. See Naga-

nab v. Hitchcock, 202 U.S. 478, 475-76 (1906); Af-

filiated Ute Citizens v. United States, 406 U.S. 128,

141-43 (1972); United States v. Eastman, 118 F.2d

421, 423 (9th Cir.), cert. denied, 314 U.S. 635

(1941) ; Harkins v. United States, 375 F.2d 239, 240-

42 (10th Cir. 1967); Twin Cities Chippewa Tribal

Council v. Minnesota Chippewa Tribe, 370 F.2d 529,

531-32 (8th Cir. 1967) ; Motah v. United States, 402

F.2d 1, 2 (10th Cir. 1968) ; Vicenti v. United States,

470 F.2d 845, 847-48 (10th Cir. 1972), cert. dis-

missed, 414 U.S. 1057 (19738) ; National Indian Youth

Council v. Bruce, 485 F.2d 97, 99 (10th Cir. 19738),

cert. denied, 417 U.S. 920 (1974). Most of these

holdings concerned affirmative, non-monetary reme-

dies, and for that reason have little bearing on our

topic of monetary relief. In all of this set cf cases

jurisdiction was sought to be laid under statutory

provisions very different from section 1491 or sec-

tion 1505 (or the District Court analogue to the

Tucker Act, 28 U.S.C. § 1846(a) (2) (1976)). None

of the decisions passed upon the scope of the latter

consents-to-monetary-suits (or any statutes compara-

ble to them).

The case in this court which defendant stresses is

United States v. Mescalero Apache Tribe, 207 Ct. Cl.

369, 518 F.2d 13809 (1975), cert. denied, 425 U.S.

911 (1976). But,that decision wholly revolved around

the separate problem of the responsibility of the Gov-

16a

ernment for payment of interest, and the existence

vel non of statutes authorizing such payment in the

circumstances then before the court. That subject

matter is a far cry from most (though not all) of the

claims in the present cases.” Nor did Mescalero

Apache Tribe purport to pass, either in holding or

in dictum, upon the jurisdictional question of the

power of this court to entertain, under 28 U.S.C.

§§ 1491 and 1505, the breach of trust allegations

made by present plaintiffs.”

The upshot of our review of the prior holdings in

this and other courts—called to our attention or of

which we are aware—is that none suggests or calls

for a denial of jurisdiction over the present proceed-

ings. As shown in Part I, supra, our own earlier de-

cisions sustain our power to consider plaintiffs’ claims

of breach of trust on their merits. For the reasons

already given, defendant’s current presentation has

not moved us to alter that position.

The motion to dismiss for lack of jurisdiction is

denied and the cases are returned to the Trial Divi-

2 With respect to interest, Mescalero Apache Tribe in-

volved different statutes and periods of time from those with

which the court was concerned in Cheyenne-Arapaho Tribes

v. United States, 206 Ct. Cl. 340, 512 F.2d 1890 (1975).

21 Mescalero Apache Tribe came to this court on appeal from

the Indian Claims Commission and was governed by the

jurisdictional provisions bearing on the authority of that

Commission under the Indian Claims Commission Act. See

207 Ct. Cl. at 378, 518 F.2d at 1814.

17a

sion for further proceedings on the merits of the

claims.”

NICHOLS, Judge, concurring:

I agree with and join in the court’s decision except

as specified. I add this concurrence largely because in

Navajo Tribe v. United States, Nos. 69, 299, 353 (Ct.

Cl. October 18, 1978), I expressed the view that the

court was again taking entirely too lightly the

doctrine of strict construction of the consent to be

sued, that the dropping out of Indian moral claims

from our jurisdiction if they accrued after August

13, 1946, was no small matter and could be decisive

in our adjudication of many Indian suits, and re-

ferred to the instant Mitchell case, which I expected

to be hearing soon, as an example where the change

might make a difference. After full acquaintance

with the briefs and listening to oral argument, I am

convinced that the present claims are legal as dis-

tinguished from moral, in the sense of our jurisdic-

tional constraints. The distinction between law and

equity is now effectively abolished and an equitable

claim is legal and within our jurisdiction, or at least

not excluded merely because of being equitable in the

historic sense, as a claim by a beneficiary against a

trustee surely is. It is excluded only to the extent

it demands other than money relief. If the United

States declares itself by statute to be trustee of

22 It goes almost without saying that we intimate no position

on the merits which are not at all before us. See also note 7,

supra.

18a

another’s property, it assumes in my view an obli-

gation to respond monetarily, in an action not sound-

ing in tort, for maladministration of the property

that deprives the beneficiary of its value. The stand-

ards of United States v. Testan, 424 U.S. 392 (1976)

and Eastport Steamship Corp. v. United States, 178

Ct. Cl. 599, 372 F.2d 1002 (1967) are met. The

claim is founded on an Act of Congress. We are not

to second guess the defendant’s officials every time

hindsight says they made mistakes, surely, but the

precise standard of review remains to be determined.

Many have misunderstood the decision in United

States v. Jones, 131 U.S. 1 (1889). It construed the

newly passed Tucker Act (Act of March 3, 1887, 24

Stat. 505) which stated that the Court of Claims

(concurrent with circuit and district courts respect-

ing small claims) should have jurisdiction of “all

claims” in specified categories “in respect to which

claims the party would be entitled to redress against

the United States either in a court of law, equity, or

admiralty, if the United States were suable.” The

plaintiff was suing for specific performance of a con-

tract to sell land. The Court held, largely by refer-

ence to the provisions for payment of judgments, and

out of inability to conceive this court telling the

Executive Branch what to do, that the reference

to equity extended the jurisdiction of this court to

claims for money arising out of “equitable and mari-

time, as well as legal demands,” p. 18, the issuance

of money decrees as well as money judgments, but did

not provide for other than money relief. An equity

| ne

19a

court, in those days, might decree the payment of

money, as a law court entered judgment. Thus clear-

ly a suit in equity could have been brought here if its

end as pursued was a money decree. Justices Miller

and Field, dissenting, thought this even so gutted

the statute, with which many since have agreed, but

it did not deprive the “equity” language of all mean-

ing. That would have been an unlikely thing for the

Court of those days to do. The defendant in United

States v. Milliken Imprinting Co., 202 U.S. 168 (1906)

made the same mistaken argument made here, that the

Court of Claims had no equity jurisdiction, citing

Jones, p. 169. The suit was to reform a contract and

enforce it as reformed, which the Court of Claims

had done, 40 Ct. Cl. 81 (1904). It held it had equity

power to reform the contract. The Supreme Court

affirmed (as to jurisdiction) through Mr. Justice

Holmes, saying it was making “a fairly liberal inter-

pretation of the Act,” p. 173. The reference to courts

of equity has now been removed by recodifiers from

the Tucker Act, but this only reflects the end of courts

of equity as separate institutions and has never been

held to effect a reduction in the scope of the consent

to be sued. Thus, if it will please the defendant, we

can say the Indians here are suing, as they may, for

a money decree instead of for a money judgment.

Mr. Justice Holmes thought he was being liberal, and

he would appear to have been somewhat out of sym-

pathy with the doctrine of strict construction of the

consent to be sued, but in this instance he was only

using the loophole carefully left open by the majority

20a

opinion in that nonpariel of strict construction dec1-

sions, Jones v. United States, supra.

I read our own decision in Klamath and Modoc

Tribes v. United States, 174 Ct. Cl. 483, 488 (1966)

as in accord with the foregoing, but categorizing a suit

for an accounting as other than a claim for money. In

the historical view, the decision may well be seen as

an instance of very strict construction of the consent

to be sued.

Defendant cites United States v. King, 395 U.S. 1,

2-3 (1969) and United States v. Testan, 424 U.S.

at 398, 403-04, for the proposition that relief, even

money relief, would “entail the use of equitable juris-

diction which Congress has not seen fit to confer upon

the Court of Claims.” Brief at 19. It is true that

some language in those two decisions, taken out of

context, supports defendant’s argument, but the con-

text shows the Court was referring to “equitable

jurisdiction” in the sense of other than monetary

relief. The citation of United States v. Jones, supra,

in King at p. 3, shows that this is so. The modern

Court, citing Jones, could not have overlooked that

the Jones Court was interpreting a statute, the Tuck-

er Act, that expressly conferred equitable jurisdiction,

and nullified it only so far as construed to authorize

other than monetary relief, reaffirming it within that

limitation.

I should add that in concurring in the court’s

opinion, I do not include the propostion implied in the

text for f.n. 13 and ff. In my view, the doctrine of

strict construction of the consent to be sued is relaxed

RAD Rn oF > pen ee

ee — Se ee

21a

little if at all by the fact, so far as it is the fact, that

the claimant has no other remedy. No claimant can

be said to be wholly without a remedy as long as

Congress sits. Congress has always reserved, and still

reserves, adjudication of many claims for itself, and

historically, Indian claims have often been in that

category. Statements by courts to palliate instances

of strict construction as in Klamath and Modoc,

supra, cannot alter that fundamental fact. The con-

verse is true, that creation of a later remedy else-

where may signal an intent to withdraw or revoke

an earlier consent to be used here, as in Matson Navi-

gation Co. v. United States, 284 U.S. 352 (19382)

(admiralty claims). The Jestan reasoning referred

to in f.n. 13 is somewhat in that category. I deem

the result here does not require that kind of analysis

and is fully consistent with the doctrine of strict

construction of the consent to be sued, whether or not

the Indians have any other remedy under present

law, short of Congress.

W ov. S. GOVERNMENT printing orrice; 1979 293744 395