Petitioners Brief — United States v. Mitchell

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\) Suprema Comm,

FILED

AUG 16

No. 78-1756 ’ “se

In the Supreme Cowt of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

HELEN MITCHELL, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF CLAIMS

BRIEF FOR THE UNITED STATES

WADE H. McCREE, JR.

Solicitor General

SANFORD SAGALKIN

Acting 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

Opinion below .......--.-------------------cserssseserenetotore

Jurisdiction ...........---.----------s--essseeessecceecseneeeneeness

Question presented .........------------------seeseeensenete

Statutes involved. ........-.-----------------sssssee----eeeeeee*

Statement .........------- eee nS a meee mm

Summary of argument ..........

Argument:

The United States is not liable in money

damages for breaches of trust in the man-

agement of lands allotted under the Gen-

eral Allotment Act ...........-- ‘

A. The General Allotment Act does not

constitute consent by the government

to be sued in money damages for

breaches of trust ..........----------------------

1. The General Allotment Act does

not unequivocally and expressly

consent to suit or mandate com-

sation in money damages for

breaches of trust -..........---------------

2. The legislative history of the Gen-

eral Allotment Act supports the

conclusion that: Congress did not

consent to suit for money damages

for breaches of trust in the man-

agement of allotted lands -.........-.

oawiwn -

Argument—Continued Page

B. The special relationship between the

United States and Indian Tribes does

does not create a consent to suit in

money damages for breaches of trust

in the management of Indian lands.. 29

Cases:

Conclusion .........-----..-----------s---ccseeesnneecsensecceennnneees 35

CITATIONS

Adickes v. Kress and Co., 398 U.S. 144... 30

Blackfeather v. United States, 190 U.S.

368 as 31

Clapp v. United States, 117 F. Supp. 576,

cert. denied, 348 U.S. 834 bits 28

Eastern Transportation Co. v. Unit

States, 272 U.S. 675 - 15, 18

Eastman v. United States, 28 F. 2d 807,

rev'd on other grounds, 118 F.2d 421,

cert. denied, 314 U.S. 6385 -...........--..--.--- 25

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

| | ERS 16, 18

Fort Peck Indians v. United States, 132

F. Supp. 222 25

Gila River Pima-Maricopa Indian Com-

munity v. United States, 140 F. Supp.

776 32

Gnotta v. United States, 415 F.2d 1271,

cert. denied, 397 U.S. 934 -...........-...------ 17, 29

Jackson v. Lynn, 506 F.2d 2386 -...........--.--- 29

Jacobs v. United States, 290 U.S. 13 -....... 21

Klamath and Modoc Tribes v. United

States, 174 Ct. Cl. 483 14, 32

Klamath Indians v. United States, 296

U.S. 244 31

‘

Cases—Continued Page

Mattz v. Arnett, 412 U.S. 481 -.....--.--------- 22

McKay v. Kaylton, 204 U.S. MD wciceuiinsbihints 22, 31

Medbury v. United States, 173 U.S. 492.. 17, 18,

19, 33

Minnesota v. United States, 305 U.S. 382... 24

Mosca v. United States, 417 F.2d 1382... 17, 18

Munro v. United States, 303 U.S. 36......-- 31

Neely v. Martin K. Eby Construction Co.,

BRE US. BLT ...----..cces-<n0n--coveccsenevesscsecnsores 30

Nicodemus v. Washington Power Co., 264

WDA BIG nncccencccccncccserecessscccencscennsccsosoocsecs 25

Price v. United States, 174 U.S. 378 ....---- 21

Santa Clara Pueblo v. Martinez, 436 U.S.

BM a i ol + 1 seal eahaiebiannionnnniontions 17, 21, 26

Seminole Nation v. United States, 316

TG BIG nnn nnnen-nnvsnnccsncnovecccccscnssneresnoncenesoes 31

Skokomish Indian Tribe v. France, 269

WD BBB ......--0--..--cc-neencccoecccesnnsenssecceores 32

Starr v. Campbell, 208 U.S. 527 .....--.-------- 27

United States v. Alire, 73 U.S. (6 Wall)

Oe a cenunsscaaiiaenbocsennnnininaien 12

United States v. Cook, 86 U.S. (19 Wall)

TE oo. cencsstunsisinbenensensnslsnelpaaanantonnant 26

United States v. Creek Nation, 295 US.

WO ao eicannsicicecensnnnnptncedadtonmenninenincenins 21, 31

United States v. Holland-America Lijn,

DEA U.S. 148 ...--...coc-c--cnc--cncccessoracncocncnees 29

United States v. Hvoslef, 237 U.S. 1 -...---- 17

United States v. Kagama, 118 U.S. 375... 31

United States v. King, 395 US. 1 -....------- 12,15

United States v. Mason, 412 U.S. 391...... 26

United States v. Ohio Oil Co., 163 F.2d

Ro aupeehmenebannneainnneniaiae 18, 29, 33

Cases—Continued Page

United States v. Oklahoma Gas and Elec-

tric Co., 318 U.S. 206, aff’g 127 F.2d

ER OTEELS TERA NS ee NS Sy Toe MR ote 25

United States v. Payne, 264 U.S. 446........ 5, 28

United States v. Shaw, 309 U.S. 500 -....... 31

United States v. Sherwood, 312 U.S. 584.. 30

United States v. Testan, 424 U.S. 398......passim

United States v. United States Fidelity

and Guaranty Co., 309 U.S. 506........ 11, 31, 33

Whiskers v. United States, No. 77-1620

(10th Cir. June 14, 1979) .................... 33

Constitution and statutes:

United States Constitution, Fifth Amend-

EMESIS is SE OES Oe Soe 20

Act of February 16, 1889, ch. 172, 25

EE en Ra Se a ae 26-27

Act of June 25, 1910, ch. 431, 36 Stat.

855, as amended, 25 U.S.C. 403 et seq.:

Section 7, 25 U.S.C. 407 .................... 5, 6, 27

Section 8, 25 U.S.C. 406 .................. 5-6, 8, 27

Section 8, 25 U.S.C. 406(a) -......... 27, 28, 29

Act of April 30, 1964, Pub. L. No. 88-301,

78 Stat. 187, amending 25 U.S.C. 406.. 6

General Allotment Act of 1887, ch. 119,

24 Stat. 388, as amended, 25 U.S.C. 331

| 4

Section 1, 25 U.S.C. 331 .............. 2, 5, 23, 28

Section 5, 25 U.S.C. 348 -........... 2, 4, 16, 20,

22, 23, 28

Constitution and statutes—Continued Page

Indian Claims Commission Act, ch. 959,

Section 24, 60 Stat. 1055, recodified by

Act of May 24, 1949, ch. 139, Section

89(a), 63 Stat. 102, as 28 U.S.C. 1505... 3, 9,

11, 12, 18, 14, 30, 32

Indian Reorganization Act of 1934, ch.

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

Section 2, 25 U.S.C. 462 ...................- 5, 23

Section 6, 25 U.S.C. 466 .............. 6, 8, 27, 28

Tucker Act:

ee Do acnonnnsmnsonqnasontit 20

Be Rs II ceteseponianecncncnncstinonnpmneti passim

I ia nennndonononnsbllannenitatininns 27

sci icecceneenencenncenntniinniinannedien 27

i asaanepntoanicinncelianslilion 27

I I os censcbacomnmenoaniiaainins 13

Oe sonics bnamennanninmionensinnninnans 20

a ctiins ienenpmriennnespiiapieb 13

I ea teapeizebionenntnasianierne 16

i a npainsbannninengonni 8

Se I ID oo acnseaninemstnenonasuennensiinn 8

a i cmansenmnantiiinnin 20, 23, 25

sini enendameenieahiieeesicgapbiia 20

Miscellaneous:

F. Cohen, Handbook of Federal Indian

ON i ssironicancocesionsennonainarieins 22

11 Cong. Rec. (1881):

II itiicticsnninsencenaicnnmsentibepenenepens 21

NE i icctansinscnsaiitsnnsnesigsionntnetiinlse 21

Si SEED sits ccstetcncnanschanisenvinncsovenees 21

RE I lps sancittenpensniasniinemsendnasieiis 21

pp. 1028-1086 ..eannnn------- 21

Miscellaneous—Continued

EU seiticiccMieticeavinikedsdensibecciinigivichhnditahi

15 Cong. Rec. (1884) :

SN, IIIT ddisinsisscnsnoiiscnanipainninesdieasichieg

Be I icici cnc Sicaneptinilsiabiainaascintals

pp. 2278-2279 .... ;

16 Cong. Rec. 218, 580 (1885) -.................

17 Cong. Rec. 1630-1631 (1886) -.............

92 Cong. Rec. 5313 (1946) .......................

Developments, Remedies Against the

United States and its Officials, 70

Harv. L. Rev. 827 (1957) -.............. 12,

H.R. Rep. No. 352, 81st Cong., 1st Sess.

ft | nae

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

Be RIOD * tidteibiseiiaicasiadatbenitdtacisaninsicenkeciniins

H.R. Rep. No. 2247, 48th Cong., 2d Sess.

IEEE sibidintahisiasticsiednssnccniipnentiicbvacemsesnaniacnen

Hearings on H.R. 1198 and H.R. 1841

Before the House Comm. on Indian Af-

fairs, 79th Cong., Ist Sess. (1945). .......

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

I ihicicictan cst ateakipaiapaldisbsscioconenenesenenead

1 J. Moore, Federal Practice (2d ed.

I a

19 Op. Att’y Gen. 2382 (1889) 00.

S. 48, 48th Cong., Ist Sess. (1883) _.........

S. 1445, 47th Cong., Ist Sess. (1882) _.....

S. 1773, 46th Cong., 3d Sess. (1880) ......

15, 34

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1756

UNITED STATES OF AMERICA, PETITIONER

Vv.

HELEN MITCHELL, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF CLAIMS

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the Court of Claims (Pet. App. 1la-

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

(1)

writ of certiorari to and including May 24, 1979.

The petition was filed on May 23, 1979, and was

granted on June 18, 1979 (A. 85). The jurisdiction

of this Court rests on 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 1 of the General Allotment Act of 1887,

ch. 119, 24 Stat. 388, as amended, 25 U.S.C. 331, pro-

vides in nertiment part:

In all cases where any tribe or band of Indians

has been or shall be located upon any reservation

created for their use by treaty stipulation, Act of

Congress, or executive order, the President shall

be authorized to cause the same or any part

thereof to be surveyed or resurveyed whenever in

his opinion such reservation or any part may be

advantageously utilized for agricultural or graz-

ing purposes by such Indians, and to cause allot-

ment to each Indian located thez:eon to be made

in such- areas as in his opinion may be for their

best interest not to exceed eighty acres of agri-

cultural or one hundred and sixty acres of graz-

ing land to any one Indian. * * *

2. Section 5 of the General Allotment Act of 1887,

ch. 119, 24 Stat. 389, 25 U.S. 348, provides in per-

tinent part:

Upon the approval of the allotments provided

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 whatsoever:

Provided, That the President of the United States

may in any cas 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 mention-

ed, such conveyance or contract shall be abso-

lutely null and void: * * *.

. 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. * * *

. 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,

—————— ee CU CSS—

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 claim-

ant were not an Indian tribe, band or group.

STATEMENT

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 land allotted to individual Indians

from the Quinault Reservation in the State of Wash-

ington. The respondents are 1,465 individuals own-

ing interests in such allotments, the Quinault Tribe,

which now holds portions of the allotted lands, and

the Quinault Allottees Association, an unincorporated

association of Quinault Reservation allottees.

1. The Quinault Reservation was established in

1873 by executive order. I Kappler 923. Allotment of

the Reservation lands to individual Indians began in

1905, pursuant to the General Allotment Act of 1887,

ch. 119, 24 Stat. 388, 25 U.S.C. 331 ef seq. Section 5

of the Act, 25 U.S.C. 348, provided that the United

States would “hold the land thus allotted, for the peri-

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

benefit of the Indian to whom such allotment shall

have been made * * *.” This language was incor-

porated in the deed given to each allottee. The

period during which the United States was to hold

the title of the lands thus allotted was subsequently

extended indefinitely by Section 2 of the Indian Re-

organization Act of 1934, ch. 576, 48 Stat. 984, 25

U.S.C. 462.

Much of the land within the Quinault Reservation

is forest land. In the early years of this century, the

government took the position that the forested areas

of the Quinault Reservation were not to be allotted

under Section 1 of the General Allotment Act because

they were not suited for “agricultural or grazing

purposes * * *.” 25 U.S.C. 331. This Court rejected

that view in United States v. Payne, 264 U.S. 446

(1924), noting that “[i]t is common knowledge that

vast bodies of land, originally covered with timber,

in some of the public land States, including Wash-

ington, have been * * * cleared and brought under

cultivation.” Id. at 449. The Court concluded that

the General Allotment Act did not preclude “an allot-

ment of timbered lands, capable of being cleared and

cultivated * * *.” Ibid. Accordingly, pursuant to this

Court’s decision in Payne, the forested lands of the

Quinault Reservation were allocated to individuals

under the General Allotment Act, and by 1935 the

entire Reservation had been allotted.

Since 1910, the Secretary of the Interior has been

authorized to sell timber on the unallotted lands of

any Indian reservation (Section 7 of the Act of June

25, 1910, ch. 431 36 Stat. 857, as amended, 25 U.S.C.

407) and to consent to the sale of timber by the owner

of any Indian land “held under a trust or other patent

containing restrictions on alienations” (Section 8 of

the Act of June 25, 1910, ch. 431, 36 Stat. 857, as

amended, 25 U.S.C. 406). The Secretary is directed

to pay the proceeds of such sales (after deducting a

charge for administrative expenses) to the Tribe or

the individual patent holder. 25 U.S.C. 406, 407.

Prior to 1964, the Secretary was authorized to consent

to sales of timber on individual holdings “pursuant to

regulations” (Section 8 of the Act of June 25, 1910,

ch. 431, 36 Stat. 857), and the statute did not detail

how the Secretary should exercise this discretion.

Since 1964, however, the Secretary has been in-

structed to consider the “needs and best interests of

the Indian owner and his heirs” in approving the

sales of timber on individual Indian holdings (Act of

April 30, 1964, Pub. L. No. 88-301, 78 Stat. 187,

amending 25 U.S.C. 406).

2. Respondents alleged in the Court of Claims that

the Secretary has engaged in improper practices in

connection with his management of timber lands al-

lotted from the Quinault Reservation under the Gen-

eral Allotment Act. Specifically, they alleged that he

has (Pet. App. 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 and to rehabilitate the land after

logging; *

(3) failed to obtain payment for some merchant-

able timber;

1 Since 1934, the Secretary has been required to adhere to

the principles of sustained-yield forestry on all Indian forest

lands under his supervision. 25 U.S.C. 466.

(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 administrative charges

from allottees.

They contend that they are entitled to recover in

money damages for these alleged misdeeds because

the Secretary’s actions have breached a fiduciary duty

owed them by the United States as trustee of the

allotted lands.

The United States moved to dismiss respondents’

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 with respect

to respondents’ claims. The Court of Claims, sitting

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

held that, in 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 (Pet.

App. 5a-6a).

The court reasoned that the General Allotment Act

imposed fiduciary obligations on the United States *

2 Because the court concluded that the Act by itself estab-

lished the government’s fiduciary responsibility and the con-

sent to suit for breaches of trust, the court found it unneces-

sary to consider whether non-statutory, “unanchored judge-

created principles of fiduciary law” concerning the govern-

and that this “congressional declaration of trust * wis

‘can fairly be interpreted as mandating compensation

by the federal government for the damage sustained’

because of a proven breach of trust” (Pet. App. 6a,

quoting United States v. Testan, 424 U.S.W§98, 400

(1976) ). The court stated that this conclusion was

“the necessary inference from the statute” (Pet. App.

7a) because, if there is no damage remedy for proven

breaches of trust, “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.). The court thus concluded that “breach

of trust” claims for money damages under the Gen-

eral Allotment Act are within its jurisdiction under

98 U.S.C. 1491 as claims founded upon an “Act of

Congress” (Pet. App. 4a-7a).” Similarly, the court

concluded that the “breach of trust” claims brought

by the Tribe as successor to individual allottees under

ment’s relations with Indian tribes can create a right to

money damages within the court’s jurisdiction (Pet. App. 5a,

14a). See pages 29-38, infra. The court similarly found

it unnecessary to consider whether a cause of action for

money damages against the United States is established by

“the other pieces of legislation and regulation invoked * * *

by the Indians” (Pet. App. 12a). See, e.g., 25 U.S.C. 406 (au-

thority to consent to sales of timber or Indian lands) ; 25

U.S.C 466 (operation of forest lands on sustained-yield basis) ;

25 U.S.C. 318a, 323-825 (use of roads and rights of way).

See pages 26-29, infra.

8 The court did not consider whether the allottees’ claims

would be within its jurisdiction as claims “for liquidated or

unliquidated damages in cases not sounding in tort,” 28 U.S.C.

1491 (Pet. App. 5a). Nor did it consider whether the United

States would be subject to suit on such claims.

Re ea aT EEE) CLMSNRNSNO TMU EDD

the Act fall within its jurisdiction under 28 U.S.C.

1505 over tribal claims based on the “laws * * * of

the United States” (ibid.).*

SUMMARY OF ARGUMENT

The Court of Claims has jurisdiction over individ-

ual claims for money damages founded upon an “Act

of Congress,” 28 U.S.C. 1491, and over tribal claims

for money damages based upon the “laws * * * of the

United States,” 28 U.S.C. 1505. These jurisdictional

provisions do not, however, create any substantive

right enforceable against the United States. They

merely provide jurisdiction for the court to hear such

claims “whenever the substantive right exists.”

United States v. Testan, 424 US. 392, 398 (1976).

The Court of Claims erred in concluding that the

General Allotment Act creates a substantive right to

money damages for “breach of trust” in the manage-

ment of allotted lands. Nothing in the statute or its

legislative history overcomes the presumption that the

4The court did not consider whether the United States is

subject to suit for “breach of trust” claims with respect to

lands held by the Tribe under statutes other than the General

Allotment Act. Thd Tribe’s pleadings (¢.9., A. 18, 19) can be

construed to allege that the tribal lands at issue in this case

are held by the Tribe as the successor to individual allottees

under the Act.

The court also did not reach the question whether the Quin- |

ault Allottees Association is 4 “tribe, band or other identi-

fiable group of American Indians,” whose claims may be

brought within the court’s jurisdiction under 28 U.S.C. 1505.

Accordingly, the issue was not raised in the government’s

petition.

United States has not consented to suit in money

damages. The statute contains no “provision * * *

that expressly makes the United States liable” or

“grant[s] * * * [the] right of action with specificity.”

424 U.S. at 400. Nor does the Act speak in terms of

money claims against the United States or the right to

receive certain payments on the proof of particular

- facts. The statute thus cannot “ ‘in itself * * * be

fairly interpreted as mandating compensation’ ” for a

breach of its obligations, as Testan requires. Id. at

401-402.

The Court of Claims was mistaken in concluding

that a damage remedy must be implied because no

other remedy can correct “damage already done”

” (Pet. App. 7a) and the damage remedy is necessary

to afford “real redress” (ibid.) under the Act. This

Court has rejected the claim that a statute establish-

ing substantive rights “of necessity create[s] a

waiver of sovereign immunity such that damages are

available to redress their violation.” United States v.

Testan, supra, 424 U.S. at 400-401. Moreover, the

Court of Claims conceded that prospective remedies

are available to enforce the requirements of the Act

(Pet. App. 7a). Thus, here as in Testan (424 U.S.

at 403), “the situation * * * is not that Congress has

left the respondents remediless, * * * but that Con-

gress has not made available * * * the remedy of

money damages.”

Nor, a& respondents suggest, does the special rela-

tionship between the United States and Indian tribes

—based on non-statutory, “unanchored, judge-created

principles of fiduciary law” (Pet. App. 5a)—estab-

lish a right to money damages for “breach of trust”

within the court’s jurisdiction over claims “for liqui-

dated or unliquidated damages in cases not sounding

in tort,” 28 U.S.C. 1491. Only Congress, and neither

the courts nor executive officers, may consent to suit

against the United States, and any waiver must there-

fore be effected by “affirmative statutory authority.”

United States v. United States Fidelity & Guaranty

Co., 309 U.S. 506, 514 (1940). “TU ]nanchored,

judge-created principles of fiduciary law” employed

in judicial decisions to describe the underlying basis

of the relations between the United States and Indian

tribes do not constitute affirmative statutory consent

to suit.

ARGUMENT

THE UNITED STATES IS NOT LIABLE IN MONEY

DAMAGES FOR BREACHES OF TRUST IN THE

MANAGEMENT OF LANDS ALLOTTED UNDER

THE GENERAL ALLOTMENT ACT

A. The General Allotment Act Does Not Constitute

Consent By The Government To Be Sued In Money

Damages For Breaches Of Trust

1. The General Allotment Act does not unequivocally

and expressly consent to suit or mandate compen-

sation in money damages for breaches of trust

The Court of Claims has jurisdiction of “any claim

against the United States founded either upon the

Constitution, or any Act of Congress * * *.” 28

U.S.C. 1491 (individual claimants). See also 28

U.S.C. 1505 (tribal claimants). In United States v.

Testan, 424 U.S. 392 (1976), this Court rejected the

contention that the jurisdictional provisions of the

Tucker Act waive the “sovereign immunity [of the

‘

United States] with respect to any claim invoking a

constitutional provision or a federal statute * * ag

Id. at 400. Because “ ‘the only judgments which the

Court of Claims [is] authorized to render against the

government . . . are judgments for money found due

from the government to the petitioner’ ” (United

States v. King, 395 U.S. 1, 3 (1969), quoting United

States v. Alire, 73 U.S. (6 Wall.) 573, 575 (1867), a

suit falls within the court’s jurisdiction as a claim

founded upon “the Constitution, or any Act of Con-

gress” only if the constitutional provision or statute

relied on creates a substantive right against the

United States for “actual, presently due money dam-

ages,” United States v. King, supra, 395 U.S. at 3.

See United States v. Testan, supra, 424 U.S. at 398.

The Tucker Act itself does “not create any substan-

tive right enforceable against the United States for

money damages,” ibid.; instead, it merely “confers

jurisdiction upon [the Court of Claims] whenever the

substantive right exists.” Jd. at 398.° See also Devel-

5 Testan addressed the jurisdiction of the Court of Claims

over claims brought by individuals under the Tucker Act, 28

U.S.C. 1491. The same analysis applies, however, to the jur-

isdiction of the Court of Claims under Section 24 of the

Indian Claims Commission Act, ch. 959, 60 Stat. 1055, re-

codified as 28 U.S.C. 1505, which extended the court’s juris-

diction to claims brought by Indian tribes against the United

States.

The Indian Claims Commission Act implemented a dual

approach to the determination of Indian claims. For claims

arising prior to the effective date of the Act (August 13,

1946), the Indian Claims Commission was authorized to “hear

and determine” claims against the United States based on

legal and equitable principles and on considerations of “fair

and honorable dealings that are not recognized by any exist-

ing rule of law or equity.” 25 U.S.C. 70a. Congress intended

to place tribal claimants in a preferential position in the

determination of historical claims based on moral, as well as

legal, obligations. For claims arising after that date, however,

Congress intended to place tribal claimants on an equal

footing with persons seeking recovery under the Tucker Act:

As respects claims accruing after its adoption this bill

confers jurisdiction on the Court of Claims to deter-

mine and adjudicate any tribal claim of a character

which would be cognizable in the Court of Claims if the

claimant were not an Indian tribe. In such cases the

claimants are to be entitled to recover in the same man-

ner, to the same extent, and subject to the same condi-

tions and limitations, and the United States shall be

entitled to the same defenses, both at law and in equity,

* * * <3 in cases brought in the Court of Claims by non-

Indians under Section 145 of the Judicial Code (36 Stat.

1186, 28 U.S.C. 250) [now 28 U.S.C. 1491], as amended.

H.R. Rep. No. 1466, 79th Cong., ist Sess. 18 (1945). See

also Hearings on H.R. 1198 and H.R. 1341 Before the House

Comm. on Indian Affairs, 79th Cong., 1st Sess. 149 (1945)

(Assistant Solicitor Cohen). Accordingly, when the Indian

Claims Commission Act was first enacted it contained the

following provision in Section 24 (now 28 U.S.C. 1505):

* In any suit brought under the jurisdiction conferred by

this section the claimant shall be entitled to recover in

the same maner, to the same extent, and subject to the

same conditions and limitations, and the United States

shall be entitled to the same defenses, both at law and in

equity, and to the same offsets, counterclaims, and de-

mands, as in cases brought in the Court of Claims under

* * * section [250 of this title] [now 28 U.S.C. 1491]:

Provided, however, That nothing contained in this sec-

tion shall be construed as altering the fiduciary or other

relations between the United States and the several

Indian tribes, band or groups. [60 Stat. 1055-1056. ]

This language in the original version of the Act was deleted

as surplusage when Section 24 was recodified as 28 U.S.C.

1505, by the Act of May 24, 1949, ch. 189, Section 89(a), 63

Stat. 102, because “the provision conferring jurisdiction

cannot in any view alter the relationship of the Government

with its Indians.” H.R. Rep. No. 352, 81st Cong., 1st Sess.

15-16 (1949).

The essential objective of 28 U.S.C. 1505 was thus to pro-

vide a basis for jurisdiction in the Court of Claims for suits

brought by Indian Tribes that parallels the jurisdiction pro-

vided for individual claimants by 28 U.S.C. 1491. See Klam-

ath and Modoc Tribes v. United States, 174 Ct. Cl. 483, 489-

490 (1966). See also note 24, infra.

Because, with respect to post-1946 claims, 28 U.S.C. 1505

merely parallels the jurisdictional grant in 28 U.S.C. 1491 for

claims that “would be cognizable in the Court of Claims if the

claimant were not an Indian tribe’ (H.R. Rep. No. 1466,

supra, at 18), and because the United States is entitled to the

same defenses, both at law and in equity, under 28 U.S.C.

1505 as under 28 U.S.C. 1491 (ibid.), the conclusion that the

Tucker Act “[did] not create any substantive right enforce-

able against the United States for money damages” (United

States v. Testan, supra, 424 U.S. at 398) is equally applicable

to the grant of jurisdiction in 28 U.S.C. 1505. The right to re-

cover on a claim based on a “law * * * of the United States”

under 28 U.S.C. 1505—as for claims based on an “Act of Con-

gress” under 28 U.S.C. 1491—must therefore be premised on

the existence of a substantive right to money damages under

the statute that is claimed to be violated. See United States Vv.

Testan, supra, 424 U.S. at 398-400.

The Court of Claims did not hold to the contrary. The court,

however, did cite portions of the legislative history of the

Indian Claims Commission Act suggesting that the Act

granted jurisdiction over “any [tribal] controversy with the

Federal Government that may arise in the future” (Pet. App.

10a; emphasis by court, quoting H.R. Rep. No. 1466, 79th

Cong., 1st Sess. 8 (1946)). But the same sentence of this

House Report quoted by the court also states that the juris-

dictional grant in 28 U.S.C. 1505 gives Indian claimants, with

respect to “any controversy with the Federal Government,”

“the same right as his white or black neighbor” to secure

relief. H.R. Rep. No. 1466, supra, at 3. The jurisdictional

grant in 28 U.S.C. 1505 was thus directly linked to the grant

of jurisdiction for individual claimants in 28 U.S.C. 1491.

The comments made by then-Representative Jackson, to the

opments, Remedies Against The United States And

Its Officials, 70 Harv. L. Rev. 827, 876 (1957).

The Court of Claims erred in concluding that the

General Allotment Act constitutes the necessary con-

sent to suit and creates a substantive right to money

damages for “breach of trust” in the management of

allotted lands. Because of the basic principle “that

a waiver of immunity cannot be implied but must be

unequivocally expressed” (United States v. Testan,

supra, 424 U.S. at 399, quoting United States v. King,

supra, 395 U.S. at 4), the mere claim that a statute

has been violated does not, by itself, establish a right

to recover against the United States in money dam-

ages. Instead, a claim for money damages based on

a statute must overcome the “presumption” that the

United States has not consented to suit. Hastern

Transportation Co. v. United States, 272 U.S. 675,

686 (1927). Consent must therefore be “clearly

shown” (ibid.) by a “provision” * * * that expressly

makes the United States liable” or “grant[s] * * ‘

[the] right of action * * * with specificity.” United

States v. Testan, supra, 424 U.S. at 400. The statute

on which the claim is based must “unequivocally ex-

press[]” the government’s consent to suit (id. at

effect that “special Indian jurisdictional acts would be un-

necessary with respect to “misappropriation” of Indian funds

by government officials (Pet. App. 10a, quoting 92 Cong. Reg.

5318 (1946) ) is also consistent with this conclusion. For acts

of misappropriation may constitute takings for which just

compensation is required, and such claims have long been

within the Court. of Claims’ jurisdiction under 28 U.S.C. 1491.

See pages 20-21, infra.

399) and must, therefore, “in itself * * * be fairly

interpreted as mandating compensation by the federal

government for the damage sustained.” Jd. at 401-

402 (emphasis supplied), quoting Hastport S.S. Corp.

v. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967).°

The General Allotment Act does not constitute an

unequivocal expression of the government’s consent

to suit in money damages for breaches of trust, as

required by the Court’s decision in Testan. To be

sure, Section 5 of the Act provides that the United

States is to “hold the land * * * in trust for the sole

use and benefit of the” allottee. 25 U.S.C. 348. But

the unelaborated statement in the statute that the

allotted lands are to be held “‘in trust” does not clearly

show a consent to suit in money damages if the trust

is breached.’ The fact that the statute is claimed to

be violated cannot by itself support the conclusion

that sovereign immunity has been waived, and

“Injothing on the face” of the statute (Santa Clara

6In concluding in Testan that a separate statute must be

shown establishing a cause of action under the Tucker Act,

the Court distinguished claims based on contract or for money

“improperly exacted or retained.” 424 U.S. at 400, 401. As

we noted in the petition (Pet. 8 n.3), however, none of re-

spondents’ claims, with the possible exceptions of the claims

based on excessive administration and road fees (Pet. App.

18a-14a n.19), are for money improperly exacted or retained.

Nor are any of respondents’ claims arguably founded on an

“express or implied contract with the United States,” 28

U.S.C. 1491. See note 21, infra.

t Moreover, as is discussed below (pages 21-29, infra), the

Court of Claims erred in concluding implicitly that the “trust”

obligation established by the Act extended to management

functions.

Pueblo v. Martinez, 486 U.S. 49, 59 (1978)) “ex-

pressly makes the United States liable’ in money

damages or grants a right of action “with specificity.”

United States v. Testan, supra, 424 U.S. at 399-400.

Moreover, the statute cannot “in itself * * * fairly

be interpreted as mandating compensation” for a

breach of its obligations, as Testan requires. 424

U.S. at 401-402. A statute that “leave[s] no question”

that refunds are to be made to particular claimants

by an administrative officer, United States v. Hvoslef,

237 U.S. 1, 10 (1915), or that creates a “right to re-

cover a certain sum,” Mosca v. United States, 417

F.2d 1382, 1885 (Ct. Cl. 1969), may “in itself”

fairly be interpreted as mandating compensation for

its breach because the statutory “right” has substance

only if it can be enforced in a suit for money damages

if the claim is not paid. See also Medbury v. United

States, 173, U.S. 492, 497 (1899) (statute created a

right to be “repaid” by an administrative officer un-

der “facts stated” in the statute). Similarly, if the

statutory right “speaks in terms of money damages

or of a money claim against the United States,”

Gnotta v. United States, 415 F.2d 1271, 1278 (8th

Cir. 1969), cert. denied, 397 U.S. 934 (1970), the

statute may “in itself * * * fairly be interpreted as

mandating compensation” by the United States, for

otherwise the “right” the statute creates would have

no meaning. See United States v. Testan, supra, 424

U.S. at 402. In these contexts, the presumption that

Congress meant to accomplish some substantive end

by creating a “right to recover a certain sum” or a

“right” to a “repayment” overcomes the opposing pre-

sumption that Congress has not consented to suit.

Compare Medbury v. United States, supra, 173 USS.

at 497; United States v. Ohio Oil Co., 163 F.2d 633,

636 (10th Cir. 1947), with Hastern Transportation

Co. v. United States, supra, 272 U.S. at 686. But

nothing in the General Allotment Act speaks in terms

of money claims against the United States or of the

right to receive certain payments on the proof of

particular facts. Nothing in the statute “in itself”

(ibid.) considers, much less mandates, that money

damages are to be available as a remedy for the

breach of its obligations.

The Court of Claims concluded, however, that even

though the General Allotment Act does not in terms

purport to establish a cause of action in money dam-

ages for violations of its duties, such a remedy must

be inferred because otherwise there “is in effect no

real redress at all for a departure from the stand-

ards Congress imposed on the Government in the

*** Act” (Pet. App. 7a).° The court conceded that

8 The Court of Claims placed some reliance on language

in Eastport S.S. Corp. v. United States, supra, 872 F.2d at

1007, 1008, which suggests that a statute may create a right

to money damages “by implication” (Pet. App. 7a n.12). But

the Court in Testan did not quote or endorse this general

language in Eastport in holding that a statute must “un-

equivocally,” albeit by “fair interpretation,” mandate com-

pensation for its breach. See 424 U.S. at 398-400. Indeed, in

Testan (424 U.S. at 400) the Court cited Mosca v. United

States, supra, as consistent with its holding, and in Mosca the

consent to suit was interpreted from a statute creating a

“right to recover a certain sum,” 417 F.2d at 13886. As we

“prospective judicial review by way of injunction or

mandamus” (ibid.) may be available to enforce the

Act. But the Court concluded that these prospective

remedies were inadequate because they “would be

meaningless for damage already done.” Ibid.

The court’s analysis is fundamentally flawed. The

fact that retrospective damages for breaches of trust

in the management of allotted lands are not recover-

able in a suit for injunctive relief cannot support the

conclusion that Congress consented to suit in money

damages for such claims. It is the ordinary result of

sovereign immunity that unconsented claims for

money damages are barred. The fact that such dam-

ages cannot be recovered without the sovereign’s con-

sent does not support the conclusion. that consent has

been given. If the Court were correct in concluding

that a remedy in damages must be implied whenever

the remedy is necessary to correct “damages already

done” (Pet. App. 7a), the doctrine of sovereign im-

munity would be meaningless. Moreover, “many of

the federal statutes * * * that expressly provide

money damages as a remedy against the United

States in carefully limited circumstances would be

rendered superfluous.” United States v. Testan,

supra, 424 U.S. at 404. Thus, in Testan this Court

rejected “as unsound” the claim that a statute estab-

lishing substantive rights “of necessity create[s]

discuss in the text, a statute affording an individual a right

to an administrative “repayment” of certain funds consti-

tutes an “unequivocal” mandate for compensation, even

though this results only from fair interpretation of the

statute. See Medbury v. United States, supra, 173 U.S. at 497.

a waiver of sovereign immunity such that money dam-

ages are available to redress their violation.” 424

U.S. at 400-401.

As the Court of Claims recognized, allottees are

not wholly without remedies to protect their statutory

interest in having the allotted lands held in trust for

their “sole use and benefit.” 25 U.S.C. 348. Alleged

violations of the duty to “hold [the land] in

trust” under the Act may be remediable by injunctive

or mandamus actions against the Secretary. See 28

U.S.C. 1331(a), 1861; 5 U.S.C. 702.° Furthermore,

actions by the Secretary that appropriate the allotted

lands for other uses, or uses by other persons, may be

remediable in a suit for damages under the Fifth

Amendment.”® See United States v. Testan, supra,

®5 U.S.C. 702 provides in part (emphasis supplied) :

An action in a court of the United States seeking relief

other than money damages and stating a claim that an

agency or an officer or employee thereof acted or failed

to act in an official capacity or under color of legal au-

thority shall not be dismissed nor relief therein be de-

nied on the ground that it is against the United States

or that the United States is an indispensable party. The

United States may be named as a defendant in any such

action, and a judgment or decree may be entered against

the United States * * *.

Thus, in consenting generally to suits for injunctive and

declaratory relief, Congress expressly preserved sovereign

immunity in suits seeking relief in money damages.

10 An allottee who claims that he has been “unlawfully

denied or excluded from any allotment” may bring suit under

25 U.S.C. 845 in federal district court to obtain a decree of

his entitlement to the disputed allotment. This limited, ex-

press statutory remedy for allottees further negates the sug-

gestion that Congress intended, without so stating, to allow

an award in money damages.

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). The substantive provisions

of the Act are thus not made meaningless by the

absence of a damage remedy which Congress did not

provide. Here, as in Testan (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 remedy

of money damages * * *.

The Court of Claims thus erred in “go[ing] beyond

the language of the statute [to] impose a liability

fin money damages] which the Government has not

declared its willingness to assume.” Price v. United

States, 174 U.S. 373, 375 (1899).

2. The legislative history of the General Allotment

Act supports the conclusion that Congress did not

consent to suit for money damages for breaches of

trust in the management of allotted lands

a. In the lengthy legislative history preceding

passage of the General Allotment Act,” there is no

“ynequivocal expression of * * * legislative intent”

(Santa Clara Pueblo v. Martinez, supra, 436 U.S. at

59) to subject the United States to suit in money

11 The Act was enacted in 1887. Substantially similar bills

were debated in the Senate as early as 1881. S. 1773, 46th

Cong., 3d Sess. (1880). See 11 Cong. Rec. 778-788, 873-882,

904-918, 994-1008, 1028-1086, 1060-1070 (1881). Bills essen-

tially identical to the legislation ultimately enacted were

passed by the Senate in 1882 and 1884 but not acted upon in

the House. S. 1455, 47th Cong., 1st Sess. (1882) ; S. 48, 48th

Cong., 1st Sess. (1888). See 18 Cong. Rec. 3212 (1882); 15

Cong. Rec. 2240-2242, 2277-2280 (1884) ; 16 Cong. Rec. 218,

580 (1885) ; H.R. Rep. No. 2247, 48th Cong., 2d Sess. (1885).

damages for claimed breaches of trust under the Act.

Indeed, throughout the debates on this legislation,

there is not one statement by any Member of Con-

gress suggesting that the United States would be

liable to suit in money damages with respect to any

claim under the Act. To the contrary, the legislative

history reveals an intent that is radically inconsistent

with the Court of Claims’ broad conclusion that Con-

gres: consented to a damage remedy against the

United States as a means of enforcing the “stand-

ards * * * imposed on the Government in the Gen-

eral Allotment Act” (Pet. App. 7a).

In providing for the allotment of lands to individ-

ual Indians under this Act, Congress intended the

allotted lands to be occupied as homesteads by the

allottees for their personal use in agriculture or graz-

ing. See Mattz v. Arnett, 412-U.S. 481, 486 (1973) ;

13 Cong. Rec. 3211 (1882) (Senator Dawes) (the

allottee is to be “the occupant of the land and enjoy

all its vse * * *)”; 17 Cong. Rec. 1630-1631 (1886)

(Senators Plumb and Dawes) ; 18 Cong. Rec. 190-191

(1887). The allotment of individual homesteads to

Indians was pursuant to a congressional policy of

assimilating Indians into the larger society, a policy

that was based on the belief that the holding of land

in common was the central obstacle to “civilization”

of the Indian. See F. Cohen, Handbook of Federal

Indian Law 206-209 (1942); 11 Cong. Rec. 1060

(1881). Congress anticipated that only lands suit-

able for homesteading would serve this objective of

assimilation, and thus provided in Section 1 of the

Act, 25 U.S.C. 331, for the allotment only of lands

that “may be advantageously utilized for agricultural

or grazing purposes * * *.” See United States v.

Payne, supra, 264 U.S. at 449. It was Congress’ in-

tent that, after a 25-year period during which the

Indian allottee was to be “the occupant of the land

and enjoy all its use’ (13 Cong. Rec. 3211 (1882)

(Senator Dawes) ), the allottee would receive a fee

patent title to the land from the United States. 25

U.S.C. 348.”

The original version of this legislation in the Sen-

ate provided that, during the initial 25-year period

of the allotment, title to the allotted land would be

held by the Indian under a simple restraint on aliena-

tion, rather than by the United States “in trust.”

This language was amended at the request of Senator

Dawes to provide 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

** #” 13 Cong. Rec. 3212 (1882). In offering the

amendment, Senator Dawes explained that the “trust”

provision would “secure to the Indian his rights” to

title in the land at the expiration of 25 years “pre-

cisely as the other provision [containing a restraint on

12 The period during which the title was to be retained by

the United States was not extended indefinitely until Congress

enacted Section 2 of the Indian Reorganization Act of 1934,

ch. 576, 48 Stat. 984, 25 U.S.C. 462.

alienation] would.” ** Jbid. The difference achieved

by the amendment was that, while the States may

have attempted to tax the allotted lands if title were

given to individual Indians under simple restraints

on alienation, placing title in the United States in

trust for the allottees made it “impossible to raise the

question of [state] taxation * * *.” Ibid.

The General Allotment Act thus did not, as the

Court of Claims implicitly concluded, anticipate that

the United States would undertake broad manage-

ment responsibilities as a statutory trustee for the

allotted lands. The allottees were expected to occupy

and manage the land, enjoying all its use in agricul-

tural and grazing activities. The United States un-

dertook to “hold the land * * * in trust” not with the

objective of overriding or controlling the Indians’

right to exclusive use and possession of the land, but

instead for the limited purposes of (a) restraining

improvident alienation of the land by the allottees

and (b) affording an immunity from state taxation

for the period during which legal title remained in

the United States. 13 Cong. Rec. 3211 (1882) (Sena-

tor Dawes).'* This limited objective of the statutory

18 Senator Dawes provided this explanation of his amend-

ment in the course of offering the identical language as an

amendment to an allotment act for the Umatilla Reservation.

18 Cong. Rec. 3210, 3211 (1882). See id. at 3212.

14 Minnesota Vv. United States, 305 U.S. 382 (1939), is not

inconsistent with this conclusion. In that case, the Court held

that the United States was an indispensable party in a state

action condemning allotted lands because the United States

held legal title to the lands. The government’s limited author-

undertaking to “hold the land * * * in trust” is re-

flected at several points in the legislative history.

See 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 the “trust” un-

der the Allotment Act is necessary to enforce the

“standards Congress imposed” (Pet. App. 7a) is in-

consistent with the narrow objectives that Congress

sought to accomplish in enacting this legislation.”

ity to “hold” the lands was there at issue; the Court did not

suggest that the United States would be liable in damages for

any breach of trust or detail the nature of the trust duty. In

an analogous context, however, the Court has noted, with

regard to an Indian allotment in fee with a restraint on

alienation, that “the United States holds title in trust only

to prevent improvident alienation.” United States v. Okla-

homa Gas & Electric Co., 318 U.S. 206, 213 (1948), aff’g

127 F.2d 349, 353-354 (10th Cir. 1942). The same descrip-

tion has been applied to lands allotted under the General

Allotment Act in Eastman v. United States, 28 F. Supp. 807,

808 (W.D. Wash. 1939), rev’d on other grounds, 118 F. 2d

421 (9th Cir.), cert. denied, 314 U.S. 6385 (1941). See also

Nicodemus Vv. Washington Water Power Co., 264 F.2d 614,

616-617 (9th Cir. 1959) ; Fort Peck Indians v. United States,

132 F. Supp. 222 (Ct. Cl. 1955).

15 There is no claim in this case that any allottee has been

denied the right to occupy and use his allotment. If, however,

the United States were to misappropriate an allotment and

displace its proper owner, the allottee is authorized to sue for

the recovery of his allotment under 25 U.S.C. 345. There is

no need for any reliance on a “breach of trust” theory to

support the Indian’s claim of right to ownership of the

allotment.

Nor is there any claim in this case that the allottee has been

subjected to improper state taxation contrary to Congress’

b. Prior to 1910, the Secretary of the Interior had

no general statutory authority to consent to any sales

of timber on Indian lands. Early decisions had estab-

lished that Indians held only the right of occupancy,

and not fee title, to Indian lands and that they there-

fore could cut timber from their lands only for the

purpose of improving the land and not for the pri-

mary purpose of sale. United States v. Cook, 86 U.S.

(19 Wall.) 591 (1873). The Attorney General ruled

in 1889 that, unless some statute expressly authorized

the sale, this same rule was equally applicable to al-

lotted as well as unallotted lands. 19 Op. Att’y Gen.

232 (1889). Congress ratified the Attorney General’s

ruling by enacting the Act of February 16, 1889, ch.

objection in placing title to the land in the United States in

trust. If an allottee were subjected to improper state taxation,

it may be that a failure by the United States to oppose the

tax would be a breach of the limited objectives of the statu-

tory “trust.” In United States v. Mason, 412 U.S. 391, 398

(1978), 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. Even

assuming that failure to protect the lands from state taxa-

tion would in some circumstances be a breach of the limited

statutory “trust” (see id. at 398), there is nothing in the

Act or its history that constitues an “unequivocal expres-

sion” (Santa Clara Pueblo v. Martinez, supra, 436 U.S. at

59) of a congressional consent to suits in money damages

against the United States even in this limited context. See

also pages 11-21, supra. In any event, in this case the Court

of Claims inferred a waiver of immunity as to duties that

the Act did not impose.

172, 25 Stat. 673, which authorized the sale of dead

timber on Indian allotments and reservations but did

not permit the sale of live timber.’*® Thereafter, Con-

gress enacted special legislation from time to time to

authorize the removal and sale of timber on particular

reservations. E.g., 30 Stat. 62, 90; 31 Stat. 785; 34

Stat. 91. Finally, in 1910 the Secretary was auth-

orized generally to sell timber on unallotted lands and

apply the proceeds of the sales (after deductions for

administrative expenses) to the Indians’ benefit. Act

of June 25, 1910, ch. 431, Section 7, 36 Stat. 857,

as amended, 25 U.S.C. 407. At the same time, Con-

gress authorized the Secretary to consent to the sale

of timber by the owner of any Indian land “held

under a trust or other patent containing restrictions

on alienations” (Section 8, as amended, 25 U.S.C.

406(a)). The Secretary was directed to pay the pro-

ceeds of such sales (after deductions for adminis-

trative expenses) to the “owner” of the allotted lands. .

Ibid.

The course of this legislation makes clear that Con-

gress did not contemplate in 1887, when the General

Allotment Act was enacted, that the Secretary would

conduct timber sales for allotted lands.’ Indeed, it

was Congress’ intent to allow allotments only of land

that “may be advantageously utilized for agricultural

16 See also Starr v. Campbell, 208 U.S. 527 (1908) (timber

could not be cleared by Indians from allotted lands for the

primary purpose of sale).

17 Similarly, it was not until 1934 that Congress directed

the Secretary to manage Indian forestry units on a sustained-

yield principle. 25 U.S.C. 466.

or grazing purposes.” 25 U.S.C. 331. The need to

remove timber for the primary purpose of sale, rather

than for the purpose of improving the land for agri-

cultural use, was not foreseen as a consequence of the

Act. See United States v. Payne, supra, 264 U.S. at

449. It is thus a misreading of history to suggest

that the Act established a “trust” responsibility for

the management of allotted forest lands.

Moreover, when Congress did authorize the Secre-

tary to consent to the sale of timber on allotted lands

in 1910, Congress did not distinguish between lands

held “under a trust or other patent containing restric-

tions on alienations * * *.” 25 U.S.C. 406(a). See

also 25 U.S.C. 466 (sustained-yield management for

all “Indian forestry units’); notes 2, 17, supra. No.

doubt for this reason, the Court of Claims abjured

any reliance on these management statutes (Pet. App.

12a) in reaching its broad conclusion that the Gen-

eral Allotment Act establishes the government’s con-

sent to suit to “breach of trust” claims for money

damages by Indian allottees. There is, in any event,

nothing in the language of these statutes, or in their

legislative history, that unequivocally establishes the

government’s liability to suit for “breach of trust”

in the management of timber resources on allotted

lands.** In directing the Secretary to make certain

18 Respondent’s allegation that unlawful fees have been

exacted by the Secretary in the administration of timber

sales (see page 7, supra) may be within the Court of Claims’

jurisdiction as a suit for money “improperly exacted or re-

tained.” United States v. Testan, supra, 424 U.S. at 400, 401.

See note 6, supra; Clapp v. United States, 117 F. Supp.

576 (Ct. Cl.), cert. denied, 348 U.S. 834 (1954). But

discretionary management decisions, the statutes con-

tain no “provision * * * that expressly makes the

United States liable” or “grant[s] * * * a right of

action with specificity.” United States v. Testan,

supra, 424 U.S. at 400. Nor do the statutes speak in

terms of money damages or of a money claim against

the United States for “breach of trust.” ** See Gnotta

v. United States, supra, 415 F.2d at 1275. The stat-

utes thus do not overcome the presumption that the

United States has not consented to suit for such

claims. See, e.g., United States v. Testan, supra, 424

U.S. at 398; Jackson v. Lynn, supra, 506 F.2d at 236.

B. The Special Relationship Between The United States

And Indian Tribes Does Not Create A Consent To

Suit In Money Damages For Breaches Of Trust In

The Management Of Indian Lands

The Court of Claims found it unnecessary to con-

sider whether the special relationship between the

United States and Indian tribes—based on “un-

see United States v. Holland-America Lijn, 254 U.S. 148

(1920). But this narrow theory of jurisdiction cannot sup-

port the broad holding of the Court of Claims that the Gen-

eral Allotment Act creates a remedy for “breach of trust” in

the management of the allotted lands.

19 The statutes do support a claim that the United States

has consented to suit to enforce its undertaking to pay the

proceeds of timber sales (after deducting administrative

expenses) to the owners of the allotted lands under 25 U.S.C.

406(a). See Jackson v. Lynn, supra, 506 F.2d at 236 (a right

“for the payment of money’) ; United States v. Ohio Oil Co.,

supra, 163 F.2d at 6386 (an “express obligation to pay’’).

Respondents do not contend, however, that the Secretary has

failed to pay over the proceeds of any sale or failed other-

wise to expend the money for their benefit as the statute per-

mits. 25 U.S.C. 406(a).

anchored, judge-created principles of fiduciary law”

(Pet. App. 5a)—establishes a right to money dam-

ages for “breach of trust” within the court’s juris-

diction over claims “for liquidated or unliquidated

damages in cases not sounding in tort,” 28 U.S.C.

1491.” Nor did respondents advance this contention

in the Court of Claims. Although they do so now, as

an alternative basis for supporting the judgment be-

low (Br. in Opp. 16-17), the question is not properly

presented for review in this court." We nonetheless

address it briefly at this point.

It is fundamental that the United States may not

be sued without its unequivocal consent. United

States v. Testan, supra, 424 U.S. at 399; United

States v. Sherwood, 312 U.S. 584, 586 (1941). There

must be “affirmative statutory authority” for the

20The court chose to rely solely on the theory that the

General Allotment Act creates a right to money damages for

“breach of trust” within the court’s jurisdiction over indi-

vidual claims founded upon an “Act of Congress,” 28 U.S.C.

1491, and tribal claims based on a “law[] * * * of the United

States,” 28 U.S.C. 1505. See Pet. App. 4a-8a.

21 F.g., Adickes v. Kress & Co., 398 U.S. 144, 147 n2

(1970) ; Neely v. Martin K. Eby Construction Co., 386 U.S.

317, 330 (1967). For the same reason, respondents’ sugges-

tion that the Treaty of Olympia and the General Allotment

Act are “a form of contract” within the Court of Claims

jurisdiction over claims based on contract (28 U.S.C. 1491)

is not properly presented in this case. The claim was not

raised by respondent below, nor was it addressed by the

Court of Claims. We note, moreover, that the Court of Claims

lacks jurisdiction under 28 U.S.C. 1491 for claims based on

treaties. See 28 U.S.C. 1491. The suggestion that a treaty is

“a form of contract” thus represents an attempt to circum-

vent this limitation on the court’s authority.

suit, United States v. United States Fidelity & Guar-

anty Co,, 309 U.S. 506, 514 (1940), and the consent

to suit may not be applied “more broadly than has

been directed by Congress.” United States v. Shaw,

309 U.S. 495, 502 (1940). This is because only Con-

gress, and neither the courts nor executive officers,

may consent to suit against the United States. United

States v. United States Fidelity & Guaranty Co.,

supra, 309 U.S. at 513; United States v. Shaw, supra,

309 U.S. at 500, 502; Munro v. United States, 303

U.S. 36, 40-41 (1938).”

The “unanchored judge-created principles of fiduci-

ary law” surrounding the government’s relations with

Indians (Pet. App. 5a) do not constitute “affirmative

statutory authority” establishing the government’s

consent to be sued in money damages for “breach of

trust” in the management of Indian lands. Numerous

decisions, of course, refer to the “fiduciary” or

“ouardianship” responsibilities of the United States

in its dealings with Indian Tribes. E.g., United

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

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

v. Creek Nation, supra, 295 U.S. at 109-110; Semi-

nole Nation v. United States, 316 U.S. 286, 296-297

(1942). But a consent to suit in money damages

22 These principles apply to Indian claimants, as well as

other claimants, without distinction. See, e.g., Klamath In-

dians v. United States, 296 U.S. 244, 250, 255 (1935) ; Black-

feather v. United States, 190 U.S. 368, 376 (1903).

23 None of these cases presented or confronted the ques-

tion whether the sovereign immunity of the United States is

waived for “breach of trust” in the management of Indian

lands. See also notes 14, 15, supra.

for “breaches of trust” cannot be implied merely on

the basis of judicial decisions that employ “the word

‘fiduciary’ and the expression ‘guardian ward rela-

tionship’ * * * to describe generally the nature of the

relationship existing between the Indians and the

Government.” Gila River Pima-Maricopa Indian

Community v. United States, 140 F. Supp. 776, 780-

781 (Ct. Cl. 1956). See also Skokomish Indian Tribe

v. France, 269 F.2d 555, 560 (9th Cir. 1969). These

judicial descriptions of the underlying basis of rela-

tions between the United States and Indians do not

constitute the government’s consent to suit. Only

Congress, and not the courts, can waive the govern-

ment’s immunity and the waiver must be unequivo-

24 The history of Section 24 of the Indian Claims Commis-

sion Act, as amended, 28 U.S.C. 1505, does not support re-

spondents’ contention (Br. in Opp. 3-7) that Congress in-

tended to create a general right of action for Indian Tribes

against the United States on the theory of “breach of trust.”

During the debates on the Indian Claims Commission Act,

then-Representative Jackson explained that “section 24 of the

bill provides that with respect to all grievances that may

arise hereafter Indians shall be treated on the same basis as

other citizens of the United States in suits before the Court

of Claims * * *.” 92 Cong. Rec. 5313 (1946). In Klamath

and Modoc Tribes v. United States, supra, 174 Ct. Cl. at 489-

490, the Court of Claims correctly observed that “section 24

of the Act does exactly what Congressman Jackson said it was

intended to do; namely, it gives to Indian tribes the same

right to sue in this court as is granted to others under the

Tucker Act.” And, as this Court held in United States v.

Testan, supra, 424 U.S. at 398, the Tucker Act does not create

any substantive rights. Instead, it “merely confers jurisdic-

tion whenever the substantive right exists.” Jbid. See also

note 5, supra.

cally expressed by “affirmative statutory authority.”

United States v. United States Fidelity & Guaranty

Co., supra, 309 U.S. at 514. The Court of Claims

thus properly withheld any reliance on “unanchored

judge-created principles of fiduciary law” (Pet. App.

7a) in determining whether the United States con-

sented to suit for “breach of trust.” *

The courts’ jurisdiction over claims for “liquidated

or unliquidated damages in cases not sounding in

tort” (28 U.S.C. 1491) also fails to provide an ex-

press consent to suits in money damages for “breach

of trust.” As this Court concluded in United States

v. Testan, the Tucker Act “does not create any sub-

stantive right enforceable against the United States

for money damages.” 424 U.S. at 398. Instead, the

Act “merely confers jurisdiction upon [the Court of

Claims] whenever the substantive right exists.” Ibid.

The Tucker Act jurisdiction over claims for “liqui-

dated or unliquidated damages” thus does not create

25 See also Whiskers v. United States, No. 77-1620 (10th

Cir. June 14, 1979), where the court held that general fidu-

ciary principles applicable to the relations of Indians and the

United States do not satisfy the requirement in Testan that

there be a “specific congressional mandate to compensate

those injured by the violation of some substantive right.”

Slip op. 10. The court stated that a “legislative declaration of

trust status for a particular fund” (slip op. 6) would consti-

tute a mandate for compensation if payment from the fund

is not made. See also Medbury v. United States, supra, 173

U.S. at 497; United States v. Ohio Oil Co., supra, 163 F.2d at

636. But the court found no such legislative mandate for pay-

ment from the particular fund at issue in that case. Slip op.

6-9.

any substantive right in money damages against the

United States for claims based on the theory of breach

of trust. Moreover, the contention that the court’s

jurisdiction over claims for “liquidated or unliqui-

dated damages” creates a substantive right to recov-

ery in money damages simply proves too much: if

that interpretation of the provision were correct,

sovereign immunity would be waived for essentially

all claims against the United States and the detailed

provisions of the Tucker Act and the many federal

statutes “that expressly provide money damages as a

remedy against the United States in carefully limited

circumstances would be superfluous.” Jd. at 404.

The language of this provision should not be con-

strued to “swallow practically everything that pre-

ceeds it.” 1 J. Moore Federal Practice { 0.65 [2.-3],

at 700.112 n.39 (2d ed. 1979). As one commentator

has stated, “[t]he evident purpose of the section is to

make clear that the action may seek unliquidated

damages as well as sums illegally exacted or amounts

fixed by a contract.” Ibid. The section also makes

express the congressional intent “to prevent any tort

action from being brought” in the Court of Claims.

Developments, Remedies Against The United States

And Its Officials, supra, 70 Harv. L. Rev. 2% 881.

The provision is not intended, and has never been

applied, to create a substantive right to recovery for

“breach of trust.”

CONCLUSION

The judgment of the Court of Claims should be

reversed.

Respectfully submitted.