Respondents Brief — United States v. Mitchell

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“OEP 24 1979 if

IN THE i4

Supreme Court of the United cbtateg 6, JR, CLERK

OCTOBER TERM, 1978

No. 78-1756

UNITED STATES OF AMERICA,

Petitioner,

HELEN MITCHELL, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Claims

BRIEF FOR RESPONDENTS

CHARLES A. HOBBS

1735 New York Avenue, N.W.

Washington, D.C. 20006

Counsel for Respondents

WILKINSON, CRAGUN & BARKER

JERRY R. GOLDSTEIN

ROBIN A. FRIEDMAN

Of Counsel

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QOKSAC

150

=p SNOHOMISH

Te 160

UPPER SKAGIT

183

jy STILLAGUAMISH

ay, 157

—

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J MUCKLESHOOT

, 168

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Quinault egy

Reservation ~%

Aboriginal 4 tow

territories of Ih aw

tribes for whose ) bi

benefit the Quin- a /

ault Reservation |, .

was established. \ ,

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STATEMENT OF THE CASE ..

SUMMARY OF ARGUMENT

TABLE OF CONTENTS

IE eilenesialiahiccingntasithinminn teat ncinnmtaenisannpenascndnitanatn’

II.

ITI.

Introduction—The Testan Case .

These Breach of Trust Claims Can Be Brought

Under Section 24 of the Indian Claims Commis-

sion Act, 28 U.S.C. § 1505, Because This Is What

Congress Clearly Intended When It Passed the

ei RAE SA RAED MPR) oT RR ORD ON EN NP

A. The General Fiduciary Duty of the United

States to Indians ...

B. The Express Fiduciary Duty to these Plain-

ORE LT ISTE SOULE ae oP ONE IOUT ER

C. The Situation With Respect to Indian Claims

Prior to the Indian Claims Commission Act

of 1946

D. The Legislative History of Section 24 of the

Indian Claims Commission Act (Now 28

U.S.C. § 1505)

E. The Justice Department’s Argument Regard-

ing the Purpose of 28 U.S.C. §1505 is

Specious ......

These Breach of Trust Claims Can Be Brought

Under the Tucker Act, 28 U.S.C. § 1491, Because

There Are Independent Sources for Waiver of

Sovereign Immunity ............

A. When Congress Intentionally Establishes an

Express Trust Relationship with Indians, It

Impliedly Subjects the Government to Suit

for Damages Under the Tucker Act in the

Event the Government Breaches Its Trust

SNR Te SAS TURRET aca ci

Page

TABLE OF CONTENTS—Continued

B. Statutes Specifying Out the Government’s

Management Duties Imply a Right to Sue

for Damages Under the Tucker Act .............

C. The Express Trusts Involved Here Are Con-

tracts, and Breach Thereof Creates a Claim

Traditionally Cognizable Under the Tucker

| RRR STO TS Avi UR RE Oe

D. The Government’s Mismanagement of Trust

Assets Is Akin to “Money Improperly Ex-

acted or Retained,” and Therefore Directly

Creates a Claim Cognizable Under the Tucker

a a llddilseketomnene

E. The Justice Department’s Argument that the

General Allotment Act Cannot be Construed

to Subject the Government to a Breach of

Fe HE Br TI cain sce cntcescevscectsverssnssesese

IV. This Court, the Court of Claims, and Two Fed-

eral District Courts Have Expressly or Tacitly

Upheld Jurisdiction Over Breach of Trust Dam-

age Claims under 28 U.S.C. §§ 1491 and 1505...

A. Suits by Individual Indians Under the

ag SRS RG SRE, ae AS a

B. Suits by Tribes and Groups of Indians Under

I a ac eceptsombanini

UNTIED <cierschebintecenesvecenesccsnapsiisunectiionsiete EE

IIIT 5h atten icsanamnscneneeneinmnateabinnontinncennaenvenen

Page

iii

TABLE OF CITATIONS

CASES: Page

Baltimore and Ohio R.R. v. United States, 261 U.S.

8 | ee 39

Bryan v. Itasca County, 426 U.S. 373 (1976) .... 45

Capoeman V. United States, 440 F.2d 1002 (Ct.Cl.

ER e REED toe ee” Ciara UE Rear Ft cBowe OEE 7,47

Cherokee Nation v. Georgia, 30 U.S. 1 (1881) ........ 17, 40

Cheyenne-Arapaho Tribes v. United States, 512

ae Ee, GR ROOD cnkcticitictdbicieticvttibad 38, 48

Chinook Tribe v. United States, 6 Ind. Cl. Comm.

Be a ia ccs aihtidchecactinieiihescnnnnibininSctelechalehicaitiaimaihinita 2

Choctaw and Chickasaw Nations v. United States,

coy i | RIE ee cae ene ee 21

Cities Service Gas Co. v. United States, 500 F.2d

CRD ee EE hac edietieioia 39

Coast Indian Community v. United States, 550

pe f Bie it | RON ONO OaReT ATS 27, 37, 48

Cramer V. United States, 261 U.S. 219 (1928) ...... 22, 23

Dir. Office of Workers Compensation Programs V.

Nat’l Mines Corp., 554 F.2d 1267 (4th Cir.

ene SIRT Ry ee bere Ee MN 45

Eastport S. S. Co. v. United States, 372 F.2d 1002

Rj eer REN LT IEe MRS or N/T abe ee passim

Fields v. United States, 423 F.2d 380 (Ct.Cl.

ERNE er a CERO OORRTREN TI HORNED GRRE i Tt AWOL IM 47

Fort Berthold Indians v. United States, 71 Ct.Cl.

a NOM ene Ty eT IUE Se 22

Halbert v. United States, 283 U.S. 753 (1981)...... 3

Hebah v. United States, 428 F.2d 1334 (Ct.Cl.

SOUIEIN ‘ivccecstohantinccstetbisdienbbensiiiesidialgaah Uibsue reer ease } 47

Jacobs v. United States, 290 U.S. 18 (1988) .......... 13, 31

Joint Tribal Council of the Passamaquoddy Tribe

v. Morton, 528 F.2d 370 (1st Cir. 1975) 00.0.0... 16

Jones V. Meehan, 175 U.S. 1 (1899) 2.0000. 17

Kirkwood v. Arenas, 248 F.2d 8638 (9th Cir.

) RT CARRE SERCO ROME SHORE: cot RUN mee 45

Klamath and Modoc Tribes v. United States, 304

og BS RRR my es es ceec. TatH aE th 22

TABLE OF CITATIONS—Continued

Page

Klamath and Modoc Tribes v. United States, 364

TID CUD. CI, TIBI sciccscnccceisviinsssecicngeincnnsvescnas passim

Lane v. Pueblo of Santa Rosa, 249 U.S. 110

CI sh cic iincigunssecinnetsicncstesipinsattnstaemsbupamennsoneninasees 22

Manchester Band of Pomo Indians v. United

States, 363 F. Supp. 1238 (N.D. Cal. 1973) ........ 38, 49

Mason v. United States, 461 F.2d 1864 (Ct.Cl.

1972), rev’d on other grounds, 412 U.S. 391

IID acini ciestiknissdha isk cccdincitantaieinienincinintorticpswinanienes 12, 18, 47

Menominee Tribe v. United States, 101 Ct.Cl. 22

I ois inch ccitechtncebiciananitiveinianinthaccsiahiaiitainties 22

Menominee Tribe v. United States; 117 Ct.Cl.

SI © iicesicenitesisepsibadascsinsidectiinntioipiicsiclalebisssiecone 33

Menominee Tribe v. United States, 391 U.S. 404

INI nics cicilascainsslacnepaniicantnnasioitadatitininsansmsiasuanisandinescien 45

Morrow v. United States, 243 Fed. 854 (8th Cir.

EF viencnciinitiasinstinechsnssetsiiidninssinnennndsontmmonstsanies 40

Mosca v. United States, 189 Ct.Cl. 288, 417 F.2d

1382 (1969), cert. denied, 399 U.S. 911 (1970).. 13

Navajo Tribe v. United States, 364 F.2d 320 (Ct.

II ela irs aia ie ppiascpainietnenroticcpiiineadacansnniien 7, 22, 48

NLRB v. Bell Aerospace Co., 416 U.S. 267

SI irish sichchsetdiesc ihidinnmeks crocs caipnsdonbetatiientnscatesasnaitnies 45

Quinaielt Tribe v. United States, 10 Ind. Cl. Comm.

I hie ciasslecpigsinkdunccsdpinicaiinad Uanincatneanipwedes 40

Quinault Allottee Ass’n v. United States, 453 F.2d

I ID i sccinccasthccethginniensposenisatiniies 7, 8, 27, 39

Quinault Allottee Ass’n v. United States, 485 F.2d

1391 (Ct.Cl. 1978), cert. denied, 416 U.S. 961

aad i ih vpatctaaradbonsennmenmessined 4, 7,39, 47

Seminole Nation v. United States, 316 U.S. 286

ibis taseniintncmctabinninaiibennhtnspaptctactecee 17, 22

Seneca Nation v. United States, 173 Ct.Cl. 912

I Nita il bien anche tianspanilaeretninsabnonnicicsinatnate 18

Simon Plamondon ex rel. Cowlitz Tribe v. United

States, 21 Ind. Cl. Comm. 143 (1969) ................ 2

Smith v. United States, —— F. Supp. —— (N.D.

Se SI cercecntnnvctibiinpintnsrnicnmancthinincenoase 49

TABLE OF CITATIONS—Continued

Page

Squire v. Capoeman, 351 U.S. 1 (1956) .0..0.00000..... 8, 18, 43

Stevens v. Comm’r, 452 F.2d 741 (9th Cir. 1971).. 45

Thompson Vv. United States, 122 Ct.Cl. 8348 (1952),

cert. denied, 344 U.S. 866 ...u.................ccccccecccccccece 27

United States v. Eastman, 118 F.2d 421 (9th Cir.),

cert. denied, 314 U.S. 685 (1941) 200... 5, 23

United States v. Ferry County, 24 F. Supp. 399

I i I 40

United States v. Jackson, 280 U.S. 188 (1930)...... 45

United States v. King, 395 U.S. 1 (1969) .............. 12

United States v. Mescalero Apache Tribe, 518 F.2d

1309 (Ct.Cl. 1975), cert. denied, 425 U.S. 911

UTUNIIEY ) cutsscrchinasanladetachenidghcab sctscsacitabaay obasspnarsaiailscialk alain 26

United States v. Mille Lac Band, 229 U.S. 498

RRR Cn ust lod a RPS UDA TOE IE PAI 1 Marea ee 22

United States v. Minnesota Mut. Inv. Co., 271 U.S.

a 38

United States v. Payne, 264 U.S. 446 (1924) ........ 4,17, 42

United States v. Testan, 424 U.S. 8392 (1976).......... passim

United States v. Wickersham, 201 U.S. 390

RIE TEETER es PPA TOE SR RS Oe OI 13

Upper Chehalis Tribe v. United States, 8 Ind. Cl.

I a 2

Worcester v. Georgia, 41 U.S. 515 (1882) .............. 45

TREATIES AND STATUTES:

Treaty of Olympia, 12 Stat. 971 (1859) 0... passim

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

NARA ES SEE eR eee eR passim

Indian Claims Commission Act, 60 Stat. 1049, 25

RIE TE IFIED. uiictinsrcntnccinsecniaeduds cedctininisccadaciced passim

Indian Nonintercourse Act of 1790, 1 Stat. 137,

TOI: CUI bekiciletderctcuhttenhccaedictdsienasileidennste oacinds 16

Indian Reorganization Act, 48 Stat. 384;25 U.S.C.

SO I kl 8, 4, 44, 45

Indian Self-Determination Act, 88 Stat. 22038

eo | mk a FS neem 16

TABLE OF CITATIONS—Continued

OTHER

Page

Northwest Ordinance of 1787, 1 Stat. 50 .................... 15

Act of June 25, 1910, 36 Stat. 855, 857, 25 U.S.C.

§§ 406 ard 407 ........2......--ceceecceceeceeeeeeeeneeceseeseneneenes passim

Act of March 4, 1911, 36 Stat. 1345 -.................. 8, 27, 43

Act of May 25, 1918, 40 Stat. 591 ...............-..-..-----. 37

Act of February 14, 1920, 41 Stat. 415, 25 U.S.C.

§ 413 ING. Sep eA cae IP a NRL e Eee EETONT 35, 44

Act of April 30, 1984, 48 Stat. 647, 25 U.S.C.

III isso: dcsedinlnninshnpingscvhemnsteehsinhaiiinernnnnetansiieesoenaconecuutne 38

Act of June 24, 1938, 52 Stat. 1037, 25 U.S.C.

0 I ocsitnciscinninecisnarsnssosochinnsnceesnccccevcessovenasenensassnesenses 37

Act of February 5, 1948, 62 Stat. 17, 25 U.S.C.

I aii ccccsecetcrcerenerwiconccsesenscvecsenswescosenssnsnsesanccs 36, 37

I I CID © vciscrcnincccnosonsensonecentenebniscamesenccshonties 15

SU IE. cccsnmnensannaveansigensnapecsasocaone 21

Fe Te I ica cccacsrnsccrnssevesnadacncmasonscssooonte 4

ae ioeiciccsncsvensinesconornemerscavenshiasinmesnneeninne 5

ON i ss satnsamstennnabenionebennsaineniinnmechet 11, 37

Oe I an sal cnsscsnbenninnnensnoseantionsoee 11, 32, 33, 34, 44

I i i cssteinehmnntannsotenedaciasionanenianti passim

BO ie Be IEE ersecciesannscccnentssncsoncrenscnsassncnnsconnencasssnnts passim

BN TIN Sicctecethsciscnectnnciotncecvesmsonadascnsnestanentbass 5

Executive Order of 1873, 1 Kapp. 928 .................... 2,27

25 C.F.R. §§ 61.1 and 61.3 (1949) ........-...--..-----.---.-- 34

| Pek Pp Bl a Bk) Reena nnn enneTnne 36

2 C.F: $341.10b) (1979) .................2..-0.2000020000002 43

Re, BE BE BR UIED crecesscccececsssncecssinesetnsinascccsece 33, 35

25 C.F.R. § 256.66 (1949) ...........2.....-ccccceceeeeeeeeseeeees 37

oe yee Oaese CI078) .... 2... 6

92 Cong. Rec. 5812 (1946) @2..2........2.-enceeeeeeeeeeeees 10, 24, 25

H. Doc. No. 91-868, reprinted at 116 Cong. Rec.

GS EU BD, TOTO) oancnnc cannes cessnsccnsescceccensccecee 19

Hearings on H.R. 1198 and H.R. 1341 Before

House Comm. on Ind. Affairs, 79th Cong., 1st

SE TE MID in casciadwasabusoncshioanhncssomsnchs 16, 21, 24, 25

vii

TABLE OF CITATIONS—Continued

Page

Hearings on H.R. 7837 Before the House Comm.

on Ind. Affairs, 74th Cong., lst Sess. 5-9 (1935).. 21

Hearings on H.R. 7902 Before the House Comm.

on Ind. Affairs, 73d Cong., 2d Sess., Pt. 2

| RESET CS Sgt Ree Bore Ee IE NEE SWC oe oP PE 33

H.R. Rep. No. 1135, 61st Cong., 2d Sess. 3 (1910).. 34, 48

H.R. Rep. No. 1466, 79th Cong., 1st Sess. 2 n.2

I el aca a es 21

H.R. Rep. No. 1466, 79th Cong., 1st Sess. 4 n.2

SUITE Susans auciachespablicesacdetaamebimabieibcteiatidadaiaanaca aaa 24, 25

H.R. Rep. No. 1466, 79th Cong., 1st Sess. 3 n.2

WIE Sikinicconeitiaeiealinttinninistddaiiea abl ege ae aa 26

Final Report of the Indian Claims Comm. (1978).. 21, 22,

Wilkinson, Indian Tribal Claims Before the Court

of Claims, 55 Geo. L. J. 511 (1966)

Cong. Rec. S12599 (Sept. 14, 1979) 200. 22

Letter, Solicitor of the Interior Dept. Krulitz to

Assistant Attorney General Moorman, Nov. 21,

SII devitipmudailashcheicagsuidielabeiaupienstcstadotheleaiidlbas acs cssrliasnrcenitbate: dale 15

Chambers, Judicial Enforcement of the Federal

Trust Responsibility to Indians, 27 Stan. L. Rev.

1213 (1975)

Restatement (Second) of Trusts §§25, 205

a 31

Final Report of the American Indian Policy Re-

view Commission (1977)

Press release, the White House, July 16, 1976 .... _. 19

Message from the White House to Delegates of the

National Congress of American Indians, Au-

gust 30, 1978

IN THE

Sipreuw Cot of the United States

OCTOBER TERM, 1978

No. 78-1756

UNITED STATES OF AMERICA,

Petitioner,

HELEN MITCHELL, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Claims

BRIEF FOR RESPONDENTS

STATEMENT OF THE CASE

The Justice Department’s brief understandably omits

many of the relevant background facts of this case,’ so

we shall make a separate statement. The plaintiffs in

1 We refer to the petitioner as “the Justice Department” rather

than “the Government,” because the Interior Department, the

agency of the United States legally responsible for carrying out

the trust duties owed to these plaintiffs (see note 10 below) does

not agree with the Justice Department that the court lacks juris-

diction.

this case are 1,465 individual Indians and the Quinault

Tribe, who are beneficial owners of trust land on the

Quinault Indian Reservation, Washington.? The defend-

ant is the United States, which is the trustee of the

plaintiffs’ land.

The individual plaintiffs are descendants of the Indians

of several tribes who originally owned and occupied the

Pacific coastal region of the United States north of the

Columbia River. In 1855 the Government entered into

a treaty with some of these tribes. Treaty of Olympia

(ratified in 1859), 12 Stat. 971. The signatories to the

treaty were the Quinault and Quileute Tribes.* The

Government wanted the other neighboring tribes to sign

the treaty, but they refused to do so.t Nevertheless, after

the treaty, the Government treated them as if they had

signed the treaty, and patented their lands to settlers

(see note 4).

The treaty called for a reservation to be selected by

the President. In 1873 the President set aside some

200,000 acres within the Quinaults’ territory (see map,

frontispiece), and declared that this reservation would

be “for the use of the Quinault, Quillehute, Hoh, Quit,

and other tribes of fish-eating Indians on the Pacific

Coast... .” 1 Kapp. 928 (November 4, 1873). The

2 Another plaintiff is the Quinault Allottees Association, an un-

incorporated association of Quinault Reservation allottees. The

1,465 individuals today own about 130,000 acres of trust land on

the Reservation. The Quinault Tribe today owns approximately

4,000 acres of trust land on the Reservation.

8 The signatories included the Queets and Hoh, which were sub-

tribes of the Quinault and Quileute, respectively.

4The principal other tribes were the Chehalis, Chinook, and

Cowlitz Tribes. See 8 Ind.Cl.Comm. 436, 441-444, 473 (1960) (Che-

halis); 6 Ind.Cl.Comm. 177, 183-195, 207 (1958) (Chinook); 21

Ind.Cl.Comm. 148, 151, 166-170 (1969) (Cowlitz); and see map,

frontispiece.

“other tribes of fish-eating Indians” included the Chehalis,

Chinook and Cowlitz Tribes.®

The Reservation was heavily forested, and for that

and other reasons, none of the non-Quinault Indians

moved to the Reservation, but continued to live where

they always had lived. Consequently, after the Reserva-

tion was established, only the Quinaults lived there, as

they always had, in the Indian villages of Taholah and

Queets.

In 1905, the Government began to allot the Reserva-

tion in trust to individual Indians pursuant to the Treaty

of Olympia, the Executive Order of 1873, and, especially,

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

U.S.C. § 348. See also Act of March 4, 1911 (“Quinault

Allotment Act’’), 36 Stat. 1845 (1911).

By 1933, the Reservation had been completely allotted,

with 2,340 trust allotments, usually 80 acres each and

heavily timbered. Most of the allottees belonged to the

tribes other than Quinault, and were, as stated above,

non-residents of the Reservation. Each allottee received

a deed, signed in the name of the President of the United

States, containing language pursuant to Section 5 of the

General Allotment Act to the effect that the United

States would hold the allotment for a period of 25 years,

“.. . in trust for the sole use and benefit of the

Indian .. . or, in the case of his decease, of his heirs

The trust period was extended indefinitely by Sec. 2 of

the Indian Reorganization Act of 1934, 25 U.S.C. § 462.7

5 Halbert v. United States, 283 U.S. 753 (1981).

$25 U.S.C. § 348; for the full language in the trust patent see

— v. Capoeman, 351 U.S. 1, 4 n.6 (1956), involving a plaintiff

erein.

7 The trust relationship with the Quinault Tribe was established

by the Treaty of Olympia, 12 Stat. 971. The Tribe acquired some

of its trust land pursuant to Sec. 5 of the Indian Reorganization

While the statutory plan contemplated that allottees

would take up residence on their allotments and engage

in farming or grazing,* that was a practical impossi-

bility on the Quinault Reservation due to the heavy

forestation. Even today, the great majority of allottees

still live off the Reservation, some on other Indian reser-

vations, some in rural or urban non-Indian communities.

Approximately one-third of the land on the Reservation

has gone out of trust, either through sales to non-Indians

or inheritance by persons ineligible to own trust land.’

As a result, the Reservation today is a complex checker-

board of trust allotments and former trust allotments.

Many of the trust allotments are in “heirship status”,

meaning they are held in undivided ownership by nu-

merous heirs (sometimes hundreds) of the deceased

criginal allottees, often rendering use by any one of the

heirs impracticable.

From the time the Reservation was established, the

Government exercised complete control over its land and

timber. However, it was not until the Act of June 25,

1910, 36 Stat. 857, 25 U.S.C. §§ 406 and 407, that the

Secretary of the Interior was authorized to sell Indian

timber. Starting in 1920, the Government began to un-

dertake sales of the Quinault allottees’ timber, usually

under long-term, large-volume contracts made up of

many allotments. There have been 14 such contracts since

Act, 25 U.S.C. § 465. The Tribe also acquired some land in trust

by express grant from Congress. See, ¢.9., 76 Stat. 913 (1962),

setting aside a tract of land on the Reservation “in trust for the

Quinault Tribe of Indians... .”

8 See General Allotment Act, Sec. 1, 25 U.S.C. § 331. The as-

sumption that this policy was feasible on the Quinault Reservation

was the basis for this Court’s decision allowing the allotment of

the forested land. United States v. Payne, 264 U.S. 446, 449 (1924).

® Opinion below, reprinted in Govt. Petn. for Certiorari, “Pet.

App.” 2a. For a more detailed history see Quinault Allottee Ass'n

v. United States, 485 F.2d 1391, 1392-1395 (Ct. Cl. 1973).

1920, one of which (the Crane Creek Unit) is still on-

going, and another of which (the Taholah Unit) was

just completed in April, 1979.

The Government, through the Secretary of the Interior

and the Bureau ‘of Indian Affairs (BIA), has con-

tinuously exercised total control over the management

and disposition of the Indians’ lands and timber on the

Quinault Reservation. The BIA determines which blocks

(units) of timber are to be put up for sale." It then

obtains a power of attorney from each allottee owning

land within the unit (or a resolution from the Tribe in

the case of tribal land), after which the BIA handles

every detailed aspect of a sale—advertisement for bids,

letting of contracts, and supervision of the loggers who

build roads, cut the timber, and remove it. After the

contract commences, the BIA oversees the scaling and

grading of logs, collects the sale proceeds monthly, de-

ducts its fees, and credits the balance to the Tribe’s or

allottees’ BIA accounts. The Indians have nothing to do

with the entire operation, except (1) signing the initial

power of attorney, and (2) opening the envelope five

or ten years later (or more) with their check.’ Most

10 43 U.S.C. § 1457 and 25 U.S.C. § 2.

11 The Justice Department (Br. 5-6) speaks of the Secre

being authorized “to consent to the sale of timber by the pe

The reality on the Quinault Reservation has been that the Secretary

decided what should be sold and when, and the owner simply signed

the power of attcrney brought to him.

12The BIA’s control over Quinault logging operations was de-

scribed in United States v. Eastman, 118 F.2d 421, 424 (9th Cir.)

cert. denied, 314 U.S. 635 (1941), as follows:

“. . . Departmental regulations and instructions verni

in detail the sale of timber on allotted as well as Unallotted

lands have been in force virtually from the inception of the

[1910 Act].

“The trial court thought that [under the 1910 Act] th

statutory power of the Secretary was limited to the aa of

allottees have substandard education and do not even

know the physical location of their allotments on the

Reservation. They are totally reliant upon the Govern-

ment to manage their timber."* Practically none of them

earns anything from his allotment, except when the

once-in-a-lifetime timber sale occurs.

An Indian owner is not even allowed to cut and sell

timber from his own allotment without the permission

of the BIA and without posting a bond to assure com-

pliance with the BIA’s harvesting regulations.* Thus,

the trust responsibilities of the Government here are not

passive; the BIA has exercised active and total control

over the management of the Indians’ land and timber,

a sale ‘improvident from the standpoint of price.’ [31 F.Supp.

761.] But equally important is the exaction of guarantees that

the price agreed upon will be paid. Essential also to a provi-

dent sale of live timber are provisions for the protection of

young growth in the process of logging, stipulations relating

to the permissible height of stumps, to the disposition of slash-

ings in such way as to mitigate the fire hazard, and Many

others. Details of this sort are prescribed at length in the

fifty-odd regulations made a part of the present contracts. It

is obviously impossible for the Secretary to confer with each

allottee concerning the terms and conditions of a proposed

contract. He must of necessity promulgate general rules.”

18 See Plaintiffs’ Exhibits JT-1, at 70-95; VR-1, at 144-148 and

153-159; and BL-1, at 72-89, for a detailed discussion of the allot-

tees’ total reliance upon the BIA to manage their timber and the

BIA’s expectation and encouragement of that reliance

1425 C.F.R. § 141.19 (1979). The impotence of the plaintiffs

with respect to the logging of their lands is evidenced in fairly

recent litigation. In the late 1950’s, congressional hearings re-

vealed that the Government was allowing the loggers credit for

improper costs. Due to strong congressional criticism, the Gov-

ernment was prodded into suing the loggers in its capacity as

trustee to recover the money for the Indians. United States v.

Aloha Lumber Corp., No. 3168 (W.D. Wash.); United States v.

Rayonier, Inc., No. 3169 (W.D. Wash.). The Government, however,

ended up settling the lawsuits in 1969 for a fraction of the claim,

over the express written protest of the allottees (who had just

organized into the Quinault Allottees Association) .

and the allottees have always relied upon the BIA to

do so.

This case was filed in 1971, three years after the

allottees had organized for the first time across tribal

lines into the Quinault Allottees Association for pur-

poses of investigating possible acts of mismanagement

of their land and timber by the Government and bringing

this lawsuit.’* The many acts of mismanagement alleged

are itemized in the opinion below, Pet. App. 2a-8a. The

main claims are for failure to obtain adequate prices

for the timber sold, and failure to arrange for reforesta-

tion after logging.

At the time these claims were filed (1971), the Court

of Claims was on record as holding that it had jurisdic-

tion over breach of trust damage claims such as these,’

and no one questioned this until the Justice Department

filed its motion to dismiss on Sep. 30, 1977.

This case has already been the subject of three de-

cisions by the Court of Claims. In the first, Capoeman

v. United States, 440 F.2d 1002 (Ct. Cl. 1971), the

court held that the statute of limitations barred a claim

by one of the individual plaintiffs but recited that the

court had jurisdiction. 440 F.2d at 1002. In Quinault

Allottees Ass’n v. United States, 485 F.2d 1391 (Ct. Cl.

1973), cert. dented, 416 U.S. 961 (1974), the court ruled

against the Indians again, and held that the United

States was entitled to deduct a management fee from

the proceeds of the Quinault allottees’ timber sales. The

court did not question its jurisdiction. 485 F.2d at 1392.

15 The suit originated when tribal and allottee leaders approached

the general counsel of the Quinault Tribe in 1967 to ask that an

investigation be made into rumors that Indian timber was being

sold by the BIA for notoriously low prices.

16 Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 488

(1966); Navajo Tribe v. United States, 364 F.2d 320 (Ct. Cl.

1966).

In Quinault Allottees Ass’n v. United States, 453 F.2d

1272 (Ct. Cl. 1972), the court held that the allottees met

the requirements of a class action under its rules. How-

ever, it made the case an “opt-in”, rather than an “opt-

out”, class action. Consequently, the 531 then-plaintiffs

held regional meetings in the Pacific Northwest and

made several mass mailings, followed by voluminous

communications back and forth with prospective plain-

tiffs in order to explain the various claims to them and

give them an opportunity to “opt-in” if they wished to

join the case. Over 900 additional Indians chose to do

so, making a total of 1,465 plaintiffs, which is believed

to be a very substantial majority of all potential

claimants.

During and after these three partial adjudications, the

plaintiffs engaged in discovery for six years, including

more than a dozen depositions, extensive searches of

Government records, the development of over 20,000

pages of exhibits by plaintiffs (which were turned over to

the Justice Department in 1977), and extensive investiga-

tion and preparation of reports by numerous expert wit-

nesses in anticipation of trial.”

The trial was divided into several phases. The first

phase, covering historical and ethnological aspects of the

case, was held in Seattle in early 1977, lasting three

weeks. Following this trial, the Justice Department filed

a motion to dismiss the case for lack of jurisdiction,

thereby suspending all further proceedings."*

17 During 1971-1977, the allottees paid expenses of over $730,000,

primarily for the fees and expenses of 12 expert witnesses (attor-

ney time is on a contingent fee basis). These expenses have been

paid from a fund derived from a voluntary two percent contribu-

tion from the allottees’ timber sale proceeds.

18 The suspension was a serious blow to the momentum and co-

hesiveness of plaintiffs’ team of expert witnesses. In addition, one

of plaintiffs’ principal expert witnesses, scheduled to testify in the

second phase of the trial, has unfortunately died in the interim.

The Court of Claims, sitting en banc, denied the Jus-

tice Department’s motion. Pet. App. la-2la (Jan. 24,

1979). The court held that the trust relationship between

the Government and the plaintiffs established by the Gen-

eral Allotment Act could “fairly be interpreted as man-

dating compensation by the Federal Government for the

damage sustained” because of a proven breach of trust.

Pet. App. 6a. The court reasoned that this result was

precisely what Congress intended when it passed the

Indian Claims Commission Act in 1946, 60 Stat. 1049.

Pet. App. 9a-11la.

had

SUMMARY OF ARGUMENT

The central question is the effect on this case of United

States v. Testan, 424 U.S. 392 (1976). Testan’s basic

teaching is that the Tucker Act, 28 U.S.C. § 1491, does

not in itself waive sovereign immunity from a suit for

damages. That waiver must be found expressly or im-

pliedly in some other source—the Constitution, a statute,

a contract, etc.

We agree, of course, that these plaintiffs must satisfy

the principles reaffirmed in Testan, and it is clear that

they do satisfy them.

By various treaties, statutes, executive pronouncements,

and conduct, the United States has undertaken a fiduciary

relationship with the Indians of this country. This is true

for Indians generally, and it is particularly true for the

plaintiffs here because of the General Allotment Act, 25

U.S.C. § 348, under which each plaintiff has an express

trust relationship with the United States. This fiduciary

relationship carries with it by implication, as a constitu-

ent part of the relationship, the liability to respond in

damages if the fiduciary duties are breached. This li-

ability could not be sued upon prior to 1946 without a

special jurisdictional act because, by statute and judicial

decision, the Tucker Act had been made inapplicable to

Indian claims.

However, in 1946 Congress removed that bar, and

from then on, Indian breach of trust claims could be filed

under the Tucker Act (or under the parallel act ap-

plicable to tribal claims, 28 U.S.C. § 1505).

The Justice Department’s position is that while Con-

gress lifted the bar to some Indian claims, it did not

intend to lift the bar to Indian breach of trust claims.

The 1946 Congress would have been very surprised to

hear this. The legislative history is plain that breach

of trust claims were among those to which Congress was

lifting the bar.

Our first line of argument (Section II) is that the

legislative history of 28 U.S.C. § 1505 shows an express

waiver of sovereign immunity, so that the Court of

Claims has jurisdiction over these breach of trust claims

under the Tucker Act and 28 U.S:C. $1505. For

example—

“TSlection 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, so it will never again be necessary to pass

special Indian jurisdictional acts in order to permit

the Indians to secure a court adjudication on any

misappropriations of Indian funds or of any other

Indian property by Federal officials that might occur

in the future.” 92 Cong. Rec. 5313 (1946) (empha-

sis added).

And—

“The Interior Department itself has suggested that

it ought not to be in a position where its employees

can mishandle funds and lands of a national trustee-

ship without complete accountability ....” 92 Cong.

Rec. 5312 (1946).

Our second line of argument (Section III) is that,

entirely aside from the legislative history, waiver of im-

munity so that suit may be filed under the Tucker Act,

is accomplished:

(a) By the fiduciary relationship itself, which implies

that the beneficiary may sue for damages for breach

of trust;

(b) By various statutes spelling out specific duties

of the United States. These duties, such as to insure

reforestation after logging, 25 U.S.C. § 466, or to invest

Indian moneys, 25 U.S.C. § 162a, carry with them the

implied liability to respond in damages if they are im-

properly discharged ;

mount to implied contracts, and may be sued upon as

such under the Tucker Act under ordinary implied con-

tract jurisdiction.

(d) By the fact that when the Government has pos-

session and control of trust property, a claim for mis-

management of that property is tantamount to a claim

for ‘money improperly exacted or retained,” and is cog-

nizable under the Tucker Act without more.

The judgment of the Court of Claims should be

affirmed.

ARGUMENT

I. Introduction—The Testan Case.

But for United States v. Testan, 424 U.S. 392 (1976),

it is doubtful that the Justice Department would ever

have questioned the Court of Claims’ jurisdiction to

award damages on an Indian breach of trust claim.

This jurisdictional question was first resolved by the

Court of Claims in 1966 in the Indians’ favor, Klamath

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

and until the Justice Department raised the issue in the

instant case in 1977, everyone thought that the matter

was settled.’®

The Justice Department’s brief is so filled with refer-

ences to Testan that we feel compelled to address Testan

briefly before presenting our main arguments. However,

this brief discussion will show that there is nothing in

Testan which undercuts the Court of Claims’ jurisdic-

tion over these claims.

Testan did not establish new law; it merely reaffirmed

previous law, and applied it to the facts before the

Court. It cited with approval Eastport Stecmship Co. v.

United States, 872 F.2d 1002 (Ct. Cl. 1967), which

held that the waiver of sovereign immunity must be

found outside the Tucker Act, and may be found by

implication. It was Eastport that formulated the “fairly

. mandating compensation” test approved in Testan.

It is true, as the Justice Department says (Br. 15),

that there is language in Testan to the effect that the

waiver of sovereign immunity “cannot be implied but

must be unequivocally expressed.” *°

18 The Justice Department did half-heartedly contest jurisdiction

in the Court of Claims in Mason v. United States, 461 F.2d 1364

(Ct. Cl. 1972), but dropped the issue on review in this Court, 412

U.S. 391 (1973).

20 424 U.S. at 400, citing United States v. King, 395 U.S. 1, 4

(1969).

However, it is obvious that this language overstates

the proposition, and was merely dicta if applied to situa-

tions other than the one addressed in King. The King

case dealt with the question of whether the Court of

Claims has jurisdiction to grant declaratory judgments.

It was not unreasonable for this Court, in rejecting that

proposition, to say that the grant of such extraordinary

jurisdiction “cannot be implied but must be unequivocally

expressed.” But it would not be correct to apply the

same language, for example, to the question of whether

the court had jurisdiction to award compensation for

Fifth Amendment takings, Jacobs v. United States, 290

U.S. 18, 16 (1933), or for denial of emoluments of a

civil service position lawfully held, United States v.

Wickersham, 201 U.S. 390, 399 (1906), both of which

are causes of action against the United States allowed

by implication.

This Court in Testan was well aware that waivers of

sovereign immunity may be found by implication. Not

only did it refer to the Jacobs and Wickersham cases,

424 U.S. at 401 and 402, but it specifically approved lan-

guage in Eastport to the effect that waiver may be

found by implication. We believe that the following lan-

guage in Testan is the governing language:

“. . . entitlement to money damages depends upon

whether any federal statute ‘can fairly be inter-

preted as mandating compensation by the Federal

Government for the damage sustained.’ Eastport

S. S. Corp. v. United States, 178 Ct. Cl., at 607, 372

F.2d, at 1009; Mosca v. United States, 189 Ct. Cl.

283, 290, 417 F.2d 1382, 1386 (1969), cert. denied,

399 U.S. 911 (1970). We are not ready to tamper

with these established principles ... .” 4

and

“.. . the basis of the federal claim—whether it be

the Constitution, a statute, or a regulation—does

21 424 U.S. at 400.

not creats a cause of action for money damages

unless, as the Court of Claims has stated, that basis

in itsel#... can fairly be interpreted as mandating

compensation by the Federal Government for the

damage sustained. Hastport S. S. Corp. v. United

States, 178 Ct. Cl., at 607, 372 F.2d, at 1008,

1009.” 2?

The plaintiffs’ claims are “fairly mandated” by the

legislative history of 28 U.S.C. § 1505, the existence and

nature of the trust relationship, and the numerous stat-

utes spelling out the Government’s fiduciary duties, see

Sections II and III below. These claims meet every re-

quirement set forth in Testan and its predecessor cases

such as Eastport.

II. These Breach of Trust Claims Can Be Brought Under

Section 24 of the Indian Claims Commission Act, 28

U.S.C. § 1505, Because This Is What Congress Clearly

Intended When It Passed the Act.

In enacting Section 24 of the Indian Claims Commis-

sion Act (now 28 U.S.C. § 1505) in 1946, Congress

waived sovereign immunity for Indian breach of trust

damage claims, and intended that these claims could be

filed thereafter in the Court of Claims without the neces-

sity of further jurisdictional acts. The legislative history

of this Act and the relevant case law make it clear that

the Government’s general fiduciary duty to Indians is a

sufficiently definite and enforceable duty that an allega-

tion of its breach states a good cause of action under

28 U.S.C. § 1505. Section 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 resid-

22 424 U.S. at 401-402.

ing within the territorial limits of the United States

or Alaska whenever such claim is one arising under

the Constitution, laws or tveaties of the United

States, or Executive orders «f 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.”

A. The General Fiduciary Duty of the United States

to Indians.

The United States has a fiduciary responsibility to the

Indians within its borders, including these plaintiffs. This

responsibility has been recognized repeatedly by the Con-

gress, the Executive and the Judiciary, from the earliest

days of the Republic to the present.”

1. Congressional Recognition of the Fiduciary Duty.

The first congressional recognition of the Government’s

fiduciary duty to Indians was in the Northwest Ordinance

of 1787, ratified by the First Congress in 1789, 1 Stat.

50. Article III provided that:

“The utmost good faith shall always be observed

toward the Indians. . . and in their property, rights

and liberty, they shall never be invaded or disturbed,

unless in just and lawful wars authorized by Con-

gress; but laws founded in justice and humanity

shall from time to time be made, for preventing

wrongs being done to them... .”

28 Good general reviews of the trust relationship appear in Letter,

Solicitor of the Interior Dept. Krulitz to Assistant Attorney Gen-

eral Moorman, Nov. 21, 1979 (reprinted in our Appendix hereto,

pp. la-20a); Chambers, Judicial Enforcement of the Federal Trust

Responsibility to Indians, 27 Stan. L. Rev. 1213 (1975); and Final

Report of the American Indian Policy Review Comm., 125-138

(1977).

2% The Northwest Ordinance was made applicable to the Oregon

Territory, which included the lands now comprising the Quinault

Reservation. 9 Stat. 323, Sec. 14 (1848).

Another early recognition was the Indian Non-inter-

course Act of 1790, 1 Stat. 187, 25 U.S.C. §177. A

recent court has held that this Act—

“ . . imposes upon the federal government a fidu-

ciary’s role with respect to protection of the lands of

a tribe covered by the Act... .” Joint Tribal Coun-

cil of the Passamaquoddy Tribe v. Morton, 528 F.2d

370, 379 (1st Cir. 1975).

More recently, Congress in the Indian Self-Determination

Act, 88 Stat. 2203 (1975), 25 U.S.C. § 450a(b) —

“ . , declares its commitment to the maintenance of

the Federal Government’s unique and continuing re-

lationship with and responsibility to the Indian peo-

ple....”

Congress referred to the fiduciary relationship in the

Indian Claims Commission Act itself. 60 Stat. 1049

(1946), 25 U.S.C. § 70 et seg. Section 24 granted juris-

diction to the Court of Claims to hear post-1946 claims,

and added this proviso:

“Provided, however, that nothing contained in this

section shall be construed as altering the fiduciary

or other relations between the United States and

the several Indian tribes, bands, or groups.” *

This trust relationship has been recognized by Congress

with respect to these very plaintiffs. The Treaty of

Olympia, 12 Stat. 971 (1859), declared in Article VIII

that—

2560 Stat. at 1055-6. This proviso was explained as “indicating

that the substantive relations [of long standing] between the United

States and the several tribes” were not intended to be altered.

Hearings on H.R. 1198 and 1341 Before House Comm. on Ind. Af-

fairs, 79th Cong., Ist Sess. 127 (1945).

“The said tribes and bands acknowledge their de-

pendence on the government of the United States

Furthermore, Article IV of the treaty provided that

the United States would pay the Indians $25,000 for the

cession of their land, but they were not allowed to re-

ceive the cash; rather, the money was to “be applied to

the use and benefit of the said Indians under the direc-

tion of the President... .”

2. Judicial Recognition of the Fiduciary Duty.

This Court has spoken many times of the Govern-

ment’s trust relationship with the Indians. In Cherokee

Nation v. Georgia, 30 U.S. 1, 17 (1831) (Marshall,

C. J.), this Court stated:

“. . [The United States’ and the Indians’] relation

resembles that of a ward to his guardian.”

In Seminole Nation v. United States, 316 U.S. 286,

297 (1942), the Court said:

“Under a humane and self-imposed policy which has

found expression in many acts of Congress and nu-

merous decisions of this Court, it [the Government]

has charged itself with moral obligations of the high-

est responsibility and trust. Its conduct, as disclosed

in the acts of those who represent it in dealings with

the Indians, should therefore be judged by the most

exacting fiduciary standards.”

In United States v. Payne, 264 U.S. 446 (1924), a

case involving a Quileute Indian (some of whose de-

scendants are plaintiffs) , this Court said:

“They are an unlettered people, unskilled in the use

of language, Jones v. Meehan, 175 U.S. 1, 10-11,

with regard to whom the United States occupies the

position and assumes the responsibilities of virtual

guardianship, bound by every moral and equitable

consideration to discharge its trust with good faith

and fairness.”

In Squire v. Capoeman, 351 U.S. 1, 2 (1956), involv-

ing a Quinault Indian (and a plaintiff herein), this Court

referred to the “Government’s role as respondent’s trus-

tee and guardian.” More recently, in United States v.

Mason, 412 U.S. 391, 398 (1973), involving a breach of

trust claim under the Osage Allotment Act, this Court

stated :

“There is no doubt that the United States serves in

a fiduciary capacity with respect to these Indians,

and that, as such, it is duty bound to exercise great

care in administering its trust.”

8. Executive Recognition of the Fiduciary Duty.

Presidents too have recognized the relationship. Speak-

ing of the Indian Nonintercourse Act of 1790, President

George Washington said:

“. . you will perceive, by the law of Congress for

regulating trade and intercourse with the Indian

tribes, the fatherly care the United States intend

to take of the Indians.” Quoted in Seneca Na-

tion v. United States, 173 Ct. Cl. 912, 924 (1965)

(emphasis omitted) .

In a major message to Congress on Indian affairs in

1970, President Richard Nixon spelled out the basis of

the trust relationship:

“This policy of forced termination [of the trust

relationship] is wrong, in my judgment, for a num-

ber of reasons. First, the premises on which it rests

are wrong. Termination implies that the Federal

government has taken on a trusteeship responsibility

for Indian communities as an act of generosity to-

ward a disadvantaged people and that it can there-

fore discontinue this responsibility on a unilateral

basis whenever it sees fit. But the unique status of

i 19

Indian tribes does not rest on any premise such as

this. The special relationship between Indians and

the Federal government is the result instead of

solemn obligations which have been entered into by

the United States Government. Down through the

years, through written treaties and through formal

and informal agreements, our government has made

specific commitments to the Indian people. For their

part, the Indians have often surrendered claims to

vast tracts of land and have accepted life on govern-

ment reservations. In exchange, the government has

agreed to provide community services such as health,

education and public safety, services which would

presumably allow Indian communities to enjoy a

standard of living comparable to that of other Amer-

icans.

This goal, of course, has never been achieved. But

the special relationship between the Indian tribes and

the Federal government which arises from these

agreements continues to carry immense moral and

legal force. To terminate this relationship would be

no more appropriate than to terminate the citizen-

ship rights of any other American.” **

In 1976, President Gerald Ford, addressing an Indian

delegation, stated that:

“The Federal Government has a very unique rela-

tionship with you and your people. It is a relation-

ship of a legal trust and a high moral responsibil-

ity.” *

In 1978, President Jimmy Carter stated that:

“I consider it my solemn duty and obligation as

’ President to see that we fulfill our trusteeship re-

sponsibilities within the framework of self-determi-

26H. Doc. No. 91-363, reprinted at 116 Cong. Rec. 23258 (July

8, 1970) (emphasis added).

27 Press release, the White House, July 16, 1976.

nation for American Indians. In particular, I would

like to reaffirm my resolve to honor this country’s

legal and moral responsibilities to American Indians

in protecting their land, water and natural re-

sources.” **

The Government’s trust responsibility is well sum-

marized in a lengthy legal analysis from the Solicitor

of the Interior Department to the Justice Department,

dated November 21, 1978, reprinted in full in the Ap-

pendix hereto. The Solicitor concluded (App. 2a) that:

“1. There is a legally enforceable trust obligation

owed by the United States Government to American

Indian tribes. This obligation originated in the

course of dealings between the government and the

Indians and is reflected in the treaties, agreements

and statutes pertaining to Indians.” (Emphasis

added).

B. The Express Fiduciary Duty to These Plaintiffs.

The Government has a fiduciary relationship with the

plaintiffs not only because of the general fiduciary duty

to Indians, but expressly because of Section 5 of the

General Allotment Act of 1887, 25 U.S.C. § 348, and

other statutes, see notes 6 and 7. This fact is not dis-

puted by the Justice Department and.need not be further

belabored.

C. The Situation With Respect to Indian Claims Prior

to the Indian Claims Commission Act of 1946.

The foregoing declarations of fiduciary obligation are

all very well, but what happens when the Government

breaches that obligation to the Indians’ detriment? Can

the Indians go to court and sue the trustee, the United

States, for damages?

28 Message from the White House to Delegates of the National

Congress of American Indians, August 30, 1978.

Prior to 1946, Indian tribes could not sue the United

States, even on the most obvious and commonplace cause

of action (e.g., failure to keep treaty promises, or a

taking without just compensation), unless they obtained

a special jurisdictional act from Congress.** This was

difficult and time-consuming ® and, in many cases, when

the Indians got an act and went to the Court of Claims,

the court construed its jurisdiction under the act so

strictly that the Indians either received a small award

or were dismissed altogether and had to go back to

Congress for another try.*

2° This was partly because of 12 Stat. 765, §9 (1863) (which

deprived the Court of Claims of jurisdiction over claims arising

from Indian treaties) and partly because of the holdings of the

Court of Claims. See, e.g., Choctaw and Chickasaw Nations v.

United States, 75 Ct. Cl. 494, 499 (1932); see also H.R. Rep. No.

1466, 79th Cong., Ist Sess., 2 n.2 (1945). The legislative history

of the Indian Claims Commission Act of 1946 reveals repeated ref-

erences to the requirement of special jurisdictional acts in order

to litigate Indian claims. See, e.g., Hearings on H.R. 7837 Before

the House Comm. on Indian Affairs, 74th Cong., 1st Sess., 5-9

(1935) (statement of John Collier, Commissioner of Indian Af-

fairs); Hearings on H.R. 1198 and H.R. 1341 Before the House

Comm. on Indian Affairs, 79th Cong., 1st Sess., 113-115 (1945)

(statement of Harold Ickes, Secretary of the Interior).

30 An example of delay is detailed in Wilkinson, Indian Tribal

Claims Before the Court of Claims, 55 Geo. L. J. 511 (1966). The

Turtle Mountain Chippewas tried for many years to get a special

jurisdictional act after being forced into a cession for an extremely

unfair price in 1904. In 1928 the Senate finally approved a bill, but

the House did not concur until 1934. President Roosevelt vetoed

the bill in 1934, and then vetoed a revised bill. Further efforts were

never fully successful and, finally, the claim was filed under the

Indian Claims Commission Act of 1946. As of September 1979, the

case is still being litigated, having had several trials and appeals.

Another trial is pending on one phase of the case, and an appeal -

is pending on another.

31 Between 1881 (the year of the first claim) and 1946, almost

200 claims were filed in the Court of Claims under special acts.

Only 29 received awards. The bulk of the rest were dismissed on

technicalities. Final Report of the Indian Claims Commission 3

Most of the pre-1946 claims were land claims—+.e.,

claims for damages where land was taken without any

payment * or for inadequate payment,** and often the

court would refer to breach of the fiduciary duty as a

basis for recovery.** A few claims were for mismanage-

ment of assets (breach of trust),*> and at least one

was for breach of trust in turning over tribal funds to

a tribal government known to be corrupt.** However,

all of these claims required a special jurisdictional act,

until the Indian Claims Commission Act was passed.”

Equitable relief (7.e., injunction and declaratory judg-

ment) was available in federal district courts to enforce

the trust responsibility, at least in certain situations.®*

(1978); see also Wilkinson, note 30 supra, showing a rate of re-

covery on Indian claims of only 7 percent of the amounts claimed,

not even counting zero recovery cases.

32 See, e.g., Fort Berthold Indians v. United States, 71 Ct. Cl.

308 (1930).

38 See, e.g., Klamath and Modoc Tribes v. United States, 304 U.S.

119 (1938).

%4 See, e.g., United States v. Mille Lac Band, 229 U.S. 498, 509-10

(1913) ; United States v. Creek Nation, 295 U.S. 103, 109-10 (1935).

85 See, e.g., Navajo Tribe v. United States, 364 F.2d 320 (Ct. Cl.

1966) (mismanagement of mineral assets) (suit based in part on

special jurisdictional act); Menominee Tribe v. United States, 101

Ct. Cl. 22 (1944) (mismanagement of timber) .

86 Seminole Nation v. United States, 316 U.S. 286 (1942).

37 It is interesting to note that by the time the Indian Claims

Commission expired in 1978, it had awarded some $818,000,000 to

Indian tribes, mostly in compensation for pre-1946 land claims.

Final Report of the Indian Claims Commission 125 (1978). That

figure is about the same as the estimated $800,000,000 that the

United States paid the Indians through various treaties and agree-

ments for 90 percent of the public domain. Jd. at 5. The combined

total is less than the cost of two Trident submarines. Cong. Rec.

$12599 (Sep. 14, 1979).

88In Lane Vv. Pueblo of Santa Rosa, 249 U.S. 110 (1919), this

Court enjoined the Secretary of the Interior from disposing of the

tribe’s land under the general public land laws. See also Cramer

However, this relief is generally prospective only, and

obviously not capable of remedying irreversible wrongs

such as failing to obtain a fair price for timber. For

the latter, only money damages will make the Indians

whole, and for this a special jurisdictional act was neces-

sary prior to 1946.

In summary, when Congress began to consider the

Indian Claims Commission Act in 1945 ** the Govern-

ment’s fiduciary duty to Indians was well recognized, but

the Tucker Act was inapplicable to Indians, so that In-

dian damage claims required special jurisdictional acts.

D. The Legislative History of Section 24 of the Indian

Claims Commission Act (Now 28 U.S.C. § 1505).

In 1946 Congress passed the Indian Claims Commis-

sion Act, 25 U.S.C. § 70 et seg. The purpose was two-

fold: (1) to give tribes their day in court on old claims

previously barred, and (2) to remove the bar as to

future claims. The second purpose was accomplished in

Section 24 which is now codified as 28 U.S.C. § 1505, and

is quoted at p. 13-14 above.

The legislative history of Section 24 clearly manifests

Congress’ desire to end the need for special jurisdictional

acts for Indian breach of trust claims. Congressman

(now Senator) Henry M. Jackson, the principal sponsor

of the bill in the House, stated:

v. United States, 261 U.S. 219 (1923). However, in 1941 when the

piaintiffs in this case (or their predecessors) sought to enjoin the

Secretary from mismanaging their timber, the Ninth Circuit Court

of Appeals dismissed the case as one against the sovereign who had

not waived immunity. United States v. Eastman, 118 F.2d 421

(9th Cir.), cert. denied, 314 U.S. 635 (1941).

39 Actually, Congress had been considering the Indian Claims

Commission concept since at least 1928. See Final Report of Indian

Claims Commission 3 (1978). However, the main legislative history

took place in 1945-1946.

“TSJection 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, so it will never again be necessary to pass

special Indian jurisdictional acts in order to permit

the Indians to secure a court adjudication on any

misappropriations of Indian funds or of any other

Indian property by Federal officials that might occur

in the future.”

Congress was also aware of the varied nature of Indian

claims, recognizing that: “All sorts of agreements have

been made concerning the use and disposition of these

[Indian] funds and promising protection of the lands re-

tained by the Indians.” * Indeed, in describing the na-

ture of Indian claims, Congress specifically referred to a

timber mismanagement claim of the Menominee Indians

for which a special jurisdictional act had been enacted,

and which had been found by the court to be a valid

claim.*? Congress observed :

“If we fail to meet these obligations by denying ac-

cess to the courts when trust funds have been im-

properly dissipated or other fiduciary duties have

been violated, we compromise the national honor of

the United States.” **

Congress recognized that unless Indians were given

the right to sue the Government for mismanagement of

their trust funds and property, there would continue

to be

“, . encourage[ment of] bureaucratic disregard of

the rights of Indian citizens by a small minority of

4092 Cong. Rec. 5313 (1946) (emphasis added). See also Hear-

ings on H.R. 1198 and H.R. 1341 Before the House Comm. on In-

dian Affairs, 79th Cong., Ist Sess., 148-149 (1945).

41 H.R. Rep. No. 1466, 79th Cong., 1st Sess., 4 (1945).

42 Jd.

4 Id,

governmental officials who are comforted by the

thought that there is no judicial redress available to

the victims of their maladministration ... .” “

Congressman Jackson stressed the importance of this

fact as a reason to provide Indians with access to the

courts:

“The Interior Department itself has suggested that

it ought not be in a position where its employees

can mishandle funds and lands of a national trustee-

ship without complete accountability ....

[L]et 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 Fed-

eral Government assumed.” *

Felix S. Cohen, then Associate Solicitor for the In-

terior Department and an acknowledged expert on In-

dian law, submitted comments to Congress on behalf of

the Interior Department. Those comments with respect

to Section 24 stated:

“(I]t may be expected that future transactions with

the Indians will ut times give rise to additional

claims, the same as in the case of other parties who

believe that they have been dealt with unjustly by

the Government. The new section [24] here proposed

would correct this situation by permitting the Court

of Claims to take cognizance of Indian tribal claims

accruing subsequent to the enactment of the bill.” *

The House report summarized the purpose of the

Indian Claims Commission Act very succinctly as follows:

44 Td.

4592 Cong. Rec. 5312 (1946) (emphasis added).

46 Hearings on H.R. 1198 and H.R. 1341 Before the House Comm.

on Indian Affairs, 79th Cong., 1st Sess., 130 (1945) (emphasis

added).

“(T]he statutory prohibition against litigation in

the Court of Claims growing out of agreements with

Indian tribes would be lifted and the Indian would

henceforth have the same right as his white or black

neighbor to secure a full and free hearing in the

Court of Claims, or any other appropriate tribunal,

on any controversy with the Federal Government

that may arise in the future.” *

The Justice Department (Br. 32) contends that Con-

gress never intended in 1946 to create a cause of action

for breach of trust. We agree that no breach of trust

claim had been brought by any tribe prior to 1946 with-

out. a special jurisdictional act. However, it is quite

clear that Congress in the language quoted above was

saying that from 1946 on, the Government, as trustee,

must account for its handling of Indian trust property,

which means it must pay damages if it has breached

its fiduciary duties to the detriment of the Indians.**

We discuss this point more fully in Section III below.

Thus, Congress in passing Section 24 of the Indian

Claims Commission Act clearly intended to give “Indian

tribes, bands, and other identifiable groups of American

Indians”,*® from 1946 onward, the right to sue the

47 H.R. Rep. No. 1466, 79th Cong. 1st Sess., 3 (1946) (emphasis

added).

48 We note that the Court of Claims has construed the 1946 legis-

lative history narrowly, and limited the right to an accounting to

instances where the Indians have first proven actual wrongdoing by

the Government. In other words, even under 28 U.S.C. § 1505 the

Indians have no right to a general accounting. Klamath and Modoc

Tribes v. United States, 364 F.2d 320 (Ct. Cl. 1966). The Court of

Claims has also held that the United States does not bear the

usual trustee’s duty to pay interest on damages for breach of

trust, unless a statute specifically so requires. United States v.

Mescalero Apache Tribe, 518 F.2d 1309 (Ct. Cl. 1975), cert. denied,

425 U.S. 911 (1976).

4° The Justice Department may argue that the 1,465 individual

allottees who are plaintiffs here do not comprise a “tribe, band, or

United States in the Court of Claims to the same extent

as other citizens, and it intended that damage claims in-

volving mismanagement of trust funds and property

were to be within the ambit of the court’s jurisdiction.

Indeed, if such cases were not within the court’s juris-

diction, very few damage claims could be brought today,

since as Congress well knew, all of the old treaty claims

have been or will soon be resolved, and the principal

activity of the Government since 1946 capable of gene-

rating claims has been the performance of its role as

manager of trust property.”

E. The Justice Department’s Argument Regarding the

Purpose of 28 U.S.C. § 1505 is Specious.

The Justice Department argues in a long footnote

(Br. 12-15 n. 5) that the purpose of the Indian Claims

Commission Act was simply to give Indians the same

right to sue the United States as non-Indians. There-

fore, Justice argues, Section 1505 is not in itself a waiver

identifiable group” so as to be eligible to file a claim under 28 |

U.S.C. § 1505. This is not correct. The allottees have, in effect,

already been treated by both the Government itself and the Court

of Claims as an “identifiable group” of Indians. The Government

so treated them when it issued allotments on the Quinault Reserva-

tion to the ancestors of the plaintiffs pursuant to the Treaty of

Olympia, the Executive Order of 1873, the General Allotment Act,

and the Quinault Allotment Act of 1911 (see p. 3 supra), treating

them as one group. The Court of Claims similarly has effectively

found the allottees to be an “identifiable group” by virtue of its

class action decision in this case which recognized the facts of the

allottees’ contiguous ownership of allotments on the Quinault Reser-

vation and the Government’s common management thereof. See

Quinault Allottee Ass’n v. United States, 453 F.2d 1272, 1276 (Ct.

Cl. 1972). See also Coast Indian Community v. United States, 550

F.2d 639 (Ct. Cl. 1977) ; Thompson v. United States, 122 Ct. Cl. 348,

cert. denied, 344 U.S. 856 (1952). In any event, as Section III of

our argument shows, the individual allottees can file claims under

the Tucker Act, as the Court of Claims held below.

50 The Court of Claims recognized that breach of trust claims

were expected by Congress in 1946 to be perhaps the “main grist”

of the courts. Pet. App. lla n.16.

ti.

of sovereign immunity because the Tucker Act, which

Section 1505 tracks, is not in itself a waiver of sovereign

immunity.

We agree, of course, that the Tucker Act is not in

itself a waiver of sovereign immunity. This has long

been the law. But Section 1505 is a waiver of sovereign

immunity, and the waiver was the very purpose for its

passage. Until the Indian Claims Commission Act was

passed, Indians were barred by sovereign immunity from

suing the United States for damages. Section 1505 lifted

this bar for post-1946 claims, provided only that the

Indians have a claim which arises “under the Constitu-

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

orders of the President... .” In this respect Section

1505 gives Indian tribes and groups something that

others do not have: the right to sue the United States

for damages on claims arising from the laws or treaties

of the United States, without any necessity that such

laws or treaties imply within themselves a waiver of

sovereign immunity. The waiver is directly granted by

Section 1505. Or, put another way, the legislative his-

tory of Section 1505 supplies what Testan holds is miss-

ing from the Tucker Act.

To hold that these Indians must return to Congress

to seek another waiver of sovereign immunity would

place them in the same position as if Congress had never

passed Section 1505. Justice’s argument can be accepted

only if the legislative history of Section 1505 is ignored.

III. These Breach of Trust Claims Can Be Brought Under

the Tucker Act, 28 U.S.C. § 1491, Because There Are

Independent Sources for Waiver of Sovereign Im-

munity.

We have shown in Section II above that when Con-

gress passed the Indian Claims Commission Act, it not

only lifted the previous barrier against Indian claims,

but in doing so made clear that it intended claims such

as the instant one to be cognizable after 1946. We believe

this is conclusive of this case.

However, the Justice Department (Br. 12) argues that

because of Testan, plaintiffs still must show that the

statute under which the trust relationship arose (the

General Allotment Act) expressly or impliedly subjects

the Government to suit for damages in event of breach

of trust. We agree that a waiver of sovereign immunity

must be shown, and we believe it is shown by the Gen-

eral Allotment Act. However, it need not be shown by

the General Allotment Act; it may be shown by another

statute (such as 28 U.S.C. § 1505, discussed in Section

II), or by any other proper source, as we discuss in this

Section. Consequently, these plaintiffs’ claims are cogniz-

able under the Tucker Act pursuant to waiver impliedly

granted by the General Allotment Act, and/or the other

sources discussed.

The Tucker Act, 28 U.S.C. § 1491, provides:

“The Court of Claims shall have jurisdiction to ren-

der judgment on any claim against the United States

founded either upon the Constitution, or any Act of

Congress, or any regulation of an executive depart-

ment, or upon any express or implied contract with

the United States, or for liquidated or unliquidated

damages in cases not sounding in tort.”

Of course, Testan teaches that the Tucker Act itself

is not a waiver of sovereign immunity, and the waiver,

if one exists, must be found in independent sources. We

believe that the necessary waiver in the instant case can

be found by implication in independent sources:

a. The express trust created by statute implies a

waiver of immunity.

b. The statutes spelling out management duties of

the trustee imply a waiver of immunity from suit

for damages for breach of those duties.

—~

ce. The facts of this case make out a contract, and

any contract with the Government grants by im-

plication a waiver of immunity.

d. The Government’s mismanagement of trust assets

falls into the “money improperly exacted or re-

tained” class, which automatically receives a

waiver of immunity.

We will discuss these sources in order.

A. When Congress Intentionally Establishes an Ex-

press Trust Relationship with Indians, It Impliedly

Subjects the Government to Suit for Damages Under

the Tucker Act in the Event the Government

Pveaches Its Trust Duties.

We omit that when Congress intentionally creates

an exp-see trust with an Indian or Indian tribe (or with

anyone else for that matter), it creates an undertaking

that impliedly includes as one of its incidents the liability

to pay damages in the event of breach of the terms of

the trust. The right to sue for damages is a substantive

right impliedly conferred by the statute creating the

trust, and is therefore cognizable under the Tucker

Act. The plaintiffs here are all beneficiaries of express

trusts specifically naming them, see notes 6 and 7 above.

We find the express trust situation difficult to dis-

tinguish from the express contract situation. In the case

of an express contract, there is no need for the contract

to spell out that if the United States breaches its under-

taking it can be made to pay damages, because that is

one of the fundamental elements of the contract itself,

so fundamental it goes without saying. Without such

liability the contract is not a contract. The courts have

never, to our knowledge, questioned their jurdisdiction

under the Tucker Act to award damages against the

United States for breach of contract simply because the

contract does not expressly spell out a substantive right

of damages for breach," nor did Testan make any such

suggestion.

The reason, we submit, is that when the Government

contracts to do something, that constitutes a distinct,

“anchored” obligation ** to a distinct contracting party,

and the fears apparently implicit in Testan of creating

claims of unknown scope for unknown persons based

merely upon congressional policies do not apply. There-

fore, the substantive right to sue the United States for

damages for breach of contract (i.e., the waiver of

sovereign immunity) is implicit in every contract with

the United States.

We believe the case of an express trust is indistin-

guishable. In such a case the United States has made

a distinct undertaking to a distinct beneficiary to take

care of distinct trust property, very similar to its under-

taking when it enters into a contract. It is fundamental

to the very trust relationship itself that the beneficiary

be able to sue the Government for damages if the Gov-

ernment breaches its trust undertaking.“ This substan-

tive right does not have to be spelled out in the trust

51 None of the many Government contracts of which we are

aware expressly waives sovereign immunity in event of breach.

52 The Justice Department’s brief frequently repeats the phrase

“unanchored judge-created principles of fiduciary law.” Br. 7 n.2,

10, 11, 30, 31, 33. We do not see the relevance.

58 Of course, the Tucker Act expressly allows breach of con-

tract claims, but as Testan teaches, that merely grants the forum,

not the substantive right. Many contract claims are brought under

the Tucker Act to recover damages other than for breach of promise

to pay money (e.g., delay damages), so it would not be correct

to say that jurisdiction over contract claims, like jurisdiction

over Fifth Amendment claims, is simply a matter of the contract’s

self-executing aspects. See Jacobs v. United States, 290 U.S. 13

(1933) ; see also Testan, 424 U.S. at 401.

54 See Restatement (Second) of Trusts § 25 (1959); “[N]o trust

is created unless [the settlor] manifests an intention to impose

duties which are enforceable in the courts.” See also id. at § 205.

instrument, any more than it does in a contract. It is

implied, just as it is in a contract.

B. Statutes Specifying the Government’s Manage-

ment Duties Imply a Right to Sue for Damages

Under the Tucker Act.

Even though the express trust relationship established

by the General Allotment Act should be sufficient to sup-

port jurisdiction under 28 U.S.C. §§ 1491 and 1505, as

the Court of Claims found, we would note that the plain-

tiffs are also suing under other statutes which, in them-

selves (especially in combination with the trust relation-

ship) could support jurisdiction. We agree entirely with

the Court of Claims that these statutes and regulations

“furnish statutory directives—substantive rules of con-

duct—which help to determine the obligations and under-

takings of the Federal Government as trustee” (Pet.

App. 13a), but we also believe that these statutes fur-

nish an independent implied waiver of sovereign im-

munity. We will, therefore, briefly summarize the princi-

pal ones in relation to our claims.

1. 25 U.S.C. § 466.

One of the plaintiffs’ major claims is that the Govern-

ment failed to manage their timber in compliance with

25 U.S.C. § 466. This statute is part of the Indian Re-

organization Act of 1934, which provides for the man-

agement of Indian forests on a sustained yield basis.

In enacting this requirement, Congress heard testimony

from Commissioner of Indian Affairs John Collier that:

“[T]here must be a constructive handling of Indian

timber. We have got to stop the slaughtering of

Indian timber lands, to operate them on a perpetual

yield basis and the bill expressly directs that this

principle of conservation shall be applied through-

out.”

Collier pointed out:

“The declaration that sustained yield shall be prac-

ticed in the forests is very important. Jt is a direc-

tion.” =

He went on to discuss an earlier attempt by Congress

to apply this principle to the timberlands of the Menom-

inee Tribe. Unfortunately, the principle set forth

“. . was not followed by the Department. Much of

their timber was devastated, and, as a result, they

have a claim against the Government, an assertable

and collectable claim, that they were protected by a

specific direction from Congress that the timber

should be operated on a perpetual yield basis. The

other tribes are entitled to similar protection.” ™

The regulations of the Interior Department promul-

gated pursuant to 25 U.S.C. § 466 embellished the mean-

ing of “sustained yield.” The 1949 regulations,** which

are essentially unchanged today," required preserving

Indian forest lands in a perpetually productive state, no

clear-cutting of large contiguous areas, making ade-

55 Hearings on H.R. 7902 Before the House Comm. on Indian

Affairs, 73d Cong., 2d Sess., Pt. 2, 35 (1934) (emphasis added).

56 Jd.; Pt. 4, at 131 (emphasis added).

57 Jd. (emphasis added). The Menominees later did indeed pre-

vail upon their claim that the Government failed to manage their

forest on a sustained yield basis. Menominee Tribe v. United

States, 117 Ct. Cl. 442 (1950).

58 Plaintiffs’ Exhibit DT 3.3-2.1. The first regulations under this

statute were promulgated in 1936 (DT 3.3-1.3) and were incorpo-

rated essentially verbatim into the 1949 C.F.R., which was in effect

when the current and just-completed logging contracts at Quinault

were negotiated between the BIA and the contractors.

59 See 25 C.F.R. Pt. 141 (1979).

ee Bere 9

quate provision for new growth when mature timber is

removed, regulation of cutting so as to have continuous

production and a perpetual forest business, etc.

Plaintiffs believe that the evidence in this case will

show that the Government violated the foregoing statute

and regulations, causing direct and substantial loss to

the plaintiffs, in that in some areas on the Reservation

there is no timber growing even though logging was

completed many years or even decades ago.

Plaintiffs submit that 25 U.S.C. § 466 implicitly per-

mits the Court of Claims to award compensation to

them for their losses flowing from violations of 25

U.S.C. § 466 and the regulations issued pursuant thereto.

2. 25 U.S.C. §§ 406 and 407.

The United States was authorized as trustee to sell

Indian timber from allotted and unallotted trust lands

by virtue of the Act of June 25, 1910, 25 U.S.C. §§ 406

and 407. Detailed regulations implementing these stat-

utes first appeared in 1911, recognizing that the BIA’s

duty under the 1910 Act entailed:

“|. so managing the Indian forests as to obtain

the greatest revenue for the Indians consistent with

a proper protection and improvement of the for-

ests.” ©

The 1911 regulations were revised from time to time

and today appear in Title 25 of the Code of Federal

60 25 C.F.R. $§ 61.1 and 61.3 (1949) (DT 3.3-2.1).

61 When Congress passed the Act, it did so partly in recognition

of the fact that “in many instances the timber is the only valuable

part of the allotment or is the only source from which funds can

be obtained for the support of the Indian or the improvement of

his allotment.” H.R. Rep. No. 1135, 61st Cong., 2d Sess., 3 (1910).

62 Plaintiffs’ Exhibit DT 3.3-1.1, at 4. Even the Government offi-

cers admit that they were required to obtain fair market value for

the plaintiffs’ timber.

le tas ae. oracle os

Regulations.“ Although there are detai i

. tailed regulations

regarding the Bureau of Indian Affairs’ forest ~san

ment included within its own Indian Affairs Manual.“

the overall regulations still appear annually in 25 OFR.,

covering essentially the same detai 7

si y etails as the 1911 regula

Plaintiffs believe that the evidence in thi i

S case will

show that the Government violated the foregoing statutes

and regulations by, for example:

(a) Failing to obtain fair market value f i

et) or the plain-

tiffs timber through pricing and scaling practices which

did not meet the Government’s own regulations;

(b) Failing to obtain any com i

to pensation at all for

some of the plaintiffs’ merchantable timber, due to poor

scaling practices which failed to meet the Government’s

own regulations; and

the plaintiffs’ stumpage payments, due in part to non-

adherence to the Government’s own regulations.

Plaintiffs submit that Section 406 and 407 implici

mplicitl

permit the Court of Claims to award a for

losses flowing from violations of the implied directive

of those statutes and the regulations issued pursuant

thereto, that the Indians shall be paid fai

for their timber. . ee ee

8. 25 U.S.C. § 418.

The Government was authorized by virtue

of February 14, 1920, 41 Stat. 415, "25 Uae baa te

deduct reasonable fees from Indian timber sale proceeds

to cover the cost of the management and sale of the In-

dians’ timber. Following the congressional authoriza-

68 25 C.F.R. Pt. 141 (1979).

* Plaintiffs’ Exhibit DT 19.4-1.1 and 19.4-1.2.

tion to charge “reasonable fees,” the Interior Department

set forth in its regulations the rate of such fees and

what they were intended to cover. The regulations first

appeared in 1924, were included in the 1927 ® and 1936

revisions, and stated as follows in 25 C.F.R. § 61.25

(1949): *

“In all sales of timber from either allotted or un-

allotted land a sufficient deduction will be made from

the gross proce to cover the cost of examining,

supervising, advertising, collecting, disbursing, ac-

counting, marketing, scaling, caring for slash, and

protecting from fire the timber and young growth

left standing on the land being logged or upon ad-

jacent land... .”

Plaintiffs believe that the evidence in this case will

show that the administrative fees deducted from their

timber sales proceeds have not in fact been reasonable as

Congress directed, but have grossly exceeded the BIA’s

own stated costs (see note 76 below). Moreover, some

of the items included as costs by the Government are

improper or duplicative of costs which the loggers were

supposed to bear.

Plaintiffs submit that Section 413 implicitly permits

the Court of Claims to refund to them those fees which

have not been earned under that statute and the regula-

tions issued thereunder.

4. 25 U.S.C. §§ 318a and 323 through 325.

Under the Act of February 5, 1948, 62 Stat. 17, the

relevant portions of which are codified in 25 U.S.C.

§§ 323 through 325, Congress authorized the Secretary

of the Interior to grant rights-of-way for all purposes

65 Plaintiffs’ Exhibit DT 3.3-15.

66 Plaintiffs’ Exhibit DT 3.3-1.3.

67 Plaintiffs’ Exhibit DT 3.3-2.1.

across Indian trust land, provided that he paid such

compensation as he deemed just. Pursuant to this stat-

ute, regulations have been promulgated requiring the

issuance of revocable permits for logging roads upon

fair and adequate terms, fair compensation to the In-

dian landowner therefor,” and restoration of right-of-

way land to original condition as nearly as possible.”

Plaintiffs believe that the evidence in this case will

show that the Government violated these statutes and

regulations by:

(a) Failing to obtain fair market value in selling

certain rights-of-way ;™

(b) Charging the allottees for road maintenance costs

on public or BIA roads; and

_ Ce) Failing to require the restoration of certain

rights-of-way to original condition.

Plaintiffs submit that Sections 318a and 323 through

325 implicitly permit the Court of Claims to award

compensation to them for their losses flowing from vio-

lations of those statutes and regulations issued there-

under.

5. 25 U.S.C. § 162a.

Under the Act of June 24, 1938, 52 Stat. 1037, 25

U.S.C. § 162a,” the Secretary of the Interior was given

authority to invest tribal and individual Indian funds in

88 See, e.g., 25 C.F.R. § 256.66 (1949) (DT 3.3-2.1).

69 See, e.g., 25 C.F.R. §§ 256.69, 256.75, and 256.82 (1949) (DT

3.3-2.1) ; 25 C.F.R. §§ 161.12 and 161.13 (1979).

70 See, e.g., 25 C.F.R. § 161.7(d) (1958) (DT 3.3-2.2); 25 C.F.R

§ 161.5(d) (1979). )

71 See Coast Indian Community v. United States, 550 F.2d 639,

653 (Ct. Cl. 1977). The evidence may in fact reveal that in some

cases roads were effectively taken for public use without payment

of just compensation in violation of the Fifth Amendment.

72 This Act amended the Act of May 25, 1918, 40 Stat. 591.

a eee

a. ee a ee Poy ee

banks, bonds, notes or other public debt obligations of

the United States if deemed advisable and for the best

interest of the Indiens.”* The courts have said the

Government is liable wnder this statute for failure to

obtain going rates of interest on invested trust funds.

Cheyenne-Arapaho Trises v. United States, 512 F.2d

1390, 1394 (Ct. Cl. 1975); Manchester Band of Pomo

Indians v. United States, 363 F. Supp. 1238, 1243-44

(N.B. Cal. 1973).

Plaintiffs believe that the evidence in this case will

show that the Government paid no interest on some of

plaintiffs’ funds, and an unreasonably low rate of in-

terest on other of plaintiffs’ funds.

Plaintiffs submit that Section 162a implicitly permits

the Court of Claims to award compensation to them for

their losses flowing from violations of that statute and

the regulations issued thereunder.”

C. The Express Trusts Involved Here Are Contracts,

and Breach Thereof Creates a Claim Traditionally

Under the Tucker Act.

We believe that the facts of the trust relationship in

this case meet the requirements of an implied contract

under the Tucker <Act.”> Obviously, an express right

to sue the Government need not be present in an im-

7% The Act of April 30, 1934, 48 Stat. 647, 25 U.S.C. § 372,

amended the Act of June 25, 1910, 36 Stat. 855, covering the sale

of Indian timber, to authorize the BIA to deposit tribal and indi-

vidual Indian monies coming into its hands in banks.

7™ Where “the Government has the citizen’s money in its pocket,”

a suit to recover such money can clearly be brought. Eastport

Steamship Corp. v. United States, 372 F.2d at 1007-08.

75 This, of course, refers to implied-in-fact as opposed to implied-

in-law contracts. See United States v. Minnesota Mut. Inv. Co., 271 .

U.S. 212, 217 (1926).

plied contract becar.se there is no actual contract under-

lying the claim. In such cases, the plaintiff need only

prove that a contract was inferred “from conduct of the

parties showing, in the light of the surrounding circum-

stances, their tacit understanding.” Baltimore and Ohio

R.R. V. United States, 261 U.S. 592, 597 (1923) ; Cities

Service Gas Co. v. United States, 500 F.2d 448, 451-452

(Ct.Cl. 1974).

Under this test, there should be no question about

the Indians’ right to sue the Government in this case.

As indicated previously, the Government, pursuant to

its own statutes, regulations, and logging contract terms,

has undertaken every detailed aspect of the management

and sale of the Indians’ timber since even before logging

first began on the Quinault Reservation. In return for

these promised services, it has charged the Indians an

administrative fee so large that it substantially exceeds

the cost of the services."* The Indians’ attack on the

legitimacy of those fees (as opposed to the reasonable-

ness) was rejected by the Court of Claims. Quinault

Allottee Ass’n v. United States, 485 F.2d 1891 (Ct.Cl.

1973), cert. denied, 416 U.S. 961 (1974). If the fees

are legally authorized and the promised services are not

performed properly (or at all in some cases), there

should clearly be an implied contract with a concomi-

tant right to sue on the part of the Indians. The Jus-

tice Department seems to concede this (Br. 16 n.6),

at least to the extent of recovery of the excessive fees.

We believe there is an implied contract in another

respect. The terms of the Treaty of Olympia provided

that the Indians would cede their aboriginal lands to

76 The Government’s own records show that on a cumulative basis

as of Fiscal Year 1971, it had taken in some $3.6 million in fees in

return for $2.9 million worth of management services on the Quin-

ault Reservation. Plaintiffs’ Exhibit DT 17.6-15. We believe that

our evidence will show that this disparity has grown since 1971 and

that some of the items included as expenditures are improper.

A A RE eh Pa

the United States in return for the trust relationship,

and a small sum of money later held to be grossly in-

adequate,” and the establishment of a reservation which

could be allotted to individuals.”* The allotments made

on the Quinault Reservation pursuant to the General

Allotment Act and the Quinault Allotment Act thus

were made in fulfillment of the treaty promises.

As the Justice Department pointed out in its brief

(Br. 22), the whole intent of this statutory scheme was

to educate and train the Indians to become self-sufficient

in terms of the white community. As part of this scheme,

the trustee was required to manage the Indians’ land

and timber and has done so since even before all of the

allotments were made on the Quinault Reservation.

Obviously, the trusteeship and the allotment scheme were

part of the consideration in return for the Indians’

cession of their aboriginal homelands.”

77 Under Art. IV of the Treaty of Olympia, 12 Stat. 971, the

Quinaults and Quileutes were promised $25,000, whereas the land

they ceded was worth $317,000. See 10 Ind. Cl. Comm. at 417

(1962).

78 12 Stat. 971, Art. VI. The treaty said that the President could

assign lots to Indians who were “willing to avail themselves of the

privilege, and will locate on the same as a permanent home.”

79 See President Nixon’s Message to Congress, note 22, supra.

See also Cherokee Nation v. Georgia, 30 U.S. 1, 58-59 (1831) (con-

curring opinions of Thompson and Story, JJ.): (“The treaties

made with this [Cherokee] nation purport to secure to it certain

rights. These are not gratuitous obligations assumed on the part

of the United States. They are obligations founded upon a con-

sideration paid by the Indians by cession of part of their terri-

tory.”); Morrow v. United States, 243 Fed. 854, 857 (8th Cir.

1917), holding that where Indians consented to relinquish their

lands and accept trust allotments, there was “a valid contract” be-

tween the Government and the Indians; and United States v. Ferry

County, 24 F. Supp. 399, 400 (E.D. Wash. 1938) (“this [allotment]

is an express trust for valuable consideration, to the faithful per-

formance of which the United States was legally committed.”

it al etd eat

For these reasons there was an implied contract that

the Government would manage the Indians’ trust timber,

and if the Government did not do so adequately, there

is an implied right to sue for damages under the Tucker

Act, just as for breach of any other implied contract.

D. The Government’s Mismanagement of Trust Assets

palsy lbs Improperly Exacted or Retained,”

ore Directly Creates a Claim Cognizabl

Under the Tucker Act. eiattoct i

In Testan, this Court indicated that a suit “for money

improperly exacted or retained” would be directly cogniz-

able under the Tucker Act, without the necessity of find-

ing an independent waiver of sovereign immunity. 424

U.S. at 401. This is a reference to the first class

of cases mentioned in Eastport, 872 F.2d at 1007, where

the plaintiff “seeks return of all or part of that sum,”

and plaintiff need only allege violation of the Constitu-

tion, a statute, or a regulation. Jd.

When through lack of prudent care the United States,

as trustee with possession and control of an Indian’s

land, sells it for less than fair value, or allows waste

we believe that this must give rise to a claim tantamount

to one for “money improperly exacted or retained.” The

claim is thereupon cognizable under the Tucker Act with-

out more.

E. The Justice Department’s Argument that the Gen-

eral Allotment Act Cannot be Construed to Subject

the Government to a Breach of Trust Suit is

Specious.

The Justice Department devotes much of its argument

(Br. 21-29) to the proposition that the General Allot-

ment Act was merely a passive trust under which the

Government undertook no management responsibilities

and, thus, that the Act cannot subject the Government

to suit for damages for breach of trust. This argument,

however, is irrelevant since the trust relationship itself

implicitly grants the necessary consent to suit.” More-

over, this argument ignores the reality of the Govern-

ment’s comprehensive and exclusive management activi-

ties (i.e., the way the Interior Department has construed

the Act), and the legislative histories of the other rele-

vant statutes which must be read together (in part

materia) with the General Allotment Act as an expres-

sion of legislative intent.”

As the Justice Department acknowledges (Br. 22), the

policy behind the General Allotment Act was to give

individual homesteads to Indians to enable them to be-

come self-supporting and to assimilate them into the

larger society. The trust and the restriction upon aliena-

tion of the land were designed to protect the Indians

and assist them in achieving this goal.” In United

States v. Payne, 264 U.S. 446 (1924), dealing specifi-

cally with the Quinault Reservation, this Court held that

timberlands were also to be allotted under the General

Allotment Act to achieve the congressional purpose.

ol ice Department seems to suggest (Br. 24) that the

sake pe meng ns aca trust responsibility does not extend to

“broad management responsibilities.” However, this is certainly

contrary to what the Secretary of the Interior has understood and

acted upon since he began having the Quinault allotments logged in

1920. In any case, the scope of the Government's management

responsibilities is a question on the merits to be established at

trial; it does not bear upon whether the Government has con-

sented to be sued for breach of trust.

81 Br. at 21-29. Justice’s “analysis” of the legislative history

of the General Allotment Act and related legislation conveniently

stops before the passage of the Indian Claims Commission Act.

82 The Justice Department (Br. 24-25) argues that the only pur-

pose of the trust was to prevent alienation and taxation. As the

Court of Claims said, “But that is not what the statute says, nor is

it the way in which the Act has been administered.” Pet. App. 6a

n.11.

a rail

When Congress passed the Act of June 25, 1910, 36

Stat. 857, 25 U.S.C. §§406 and 407, authorizing the

Secretary of the Interior to sell Indian trust timber, it

did so partly in recognition of the fact that “in many

instances the timber is the only valuable part of the

allotment or is the only source from which funds can be

obtained for the support of the Indian or the improve-

ment of his allotment.” * In other words, Congress saw

the 1910 Act as necessary to further the purpose of the

General Allotment Act of aiding and “civilizing” the

Indian.“ This Court relied heavily upon this same pur-

pose in Squire v. Capoeman, 351 U.S. 1 (1956) (involv-

ing a plaintiff herein), in holding that the Indian’s

timber sale proceeds were exempt from federal income

taxes. This Court reasoned that unless the Indian re-

ceived the full, untaxed income from his timber, which

was all his land was useful for, that income would not

“be adequate to his needs and serve the purpose of bring-

ing him finally to a state of competency and inde-

pendence.” Jd. at 9-10.

Immediately after the passage of the 1910 Act, the

Interior Department promulgated detailed regulations

governing the management and sale of Indian timber.

83 H.R. Rep. No. 1135, 61st Cong. 2d Sess., 8 (1910). The Justice

Department says that the 1910 Act failed to distinguish between

management of Indian lands under a trust patent and those held

under a patent with a mere restriction on alienation, and that this

is why the Court of Claims did not rely upon the Act in its opinion.

This is false. The Government manages the trust and restricted

lands as if they were the same. See 25 C.F.R. § 141.1(b) (1979).

The court relied upon the trust established in the General Allotment

Act because that is sufficient for jurisdiction under Testan and

Eastport.

* In the Act of March 4, 1911, 36 Stat. 1845 (“Quinault Allot-

ment Act”), Congress further specified the Indians it intended to

receive trust allotments on the Quinault Reservation. This again

manifests the continuing nature of Congress’ intent in effectuating

its Indian policy under the General Allotment Act.

In 1920 (coinciding with the beginning of logging on the

Quinault Reservation), Congress decided that the Gov-

ernment should be compensated for its services in manag-

ing and selling the Indians’ timber and passed a statute

authorizing the involuntary deduction by the Government

from the Indians’ timber sale proceeds of a reasonable

fee to cover the cost of these services.** The Interior

Department then promulgated new regulations governing

every detailed aspect of the management and sale of

Indian timber and specifying what the fee was to cover.”

This again demonstrates not only the pervasiveness of

the Government’s management activities with respect to

the Indians’ timber, but also Congress’ recognition of this

fact and its decision that the Government should be paid

for its services.

In 1934, Congress passed the Indian Reorganization

Act, 48 Stat. 984, 25 U.S.C. § 461 et seq., which essen-

tially recognized the failure of the allotment policy and

provided for the restoration and protection of Indian

trust land. Though abandoning the allotment policy, Con-

gress nevertheless reaffirmed and strengthened the Gov-

ernment’s management role with respect to Indian trust

property. In Section 6 of the Act (now 25 U.S.C. § 466),

Congress required that Indian forests be managed on a

sustained yield basis. This was referred to as a

directive.™

Under the long-established policies that statutes passed

for the benefit of Indians are to be “liberally construed,

doubtful expressions being resolved in favor of the In-

86 Act of February 14, 1920, 41 Stat. 415, 25 U.S.C. § 413.

87 Plaintiffs’ Exhibit DT 3.3-15. The fee in the large Quinault

timber sale contracts has been changed from time to time, but has

ranged from 6 to 10 percent.

88 See quotation by Commissioner of Indian Affairs John Collier

at page 33, supra.

dians,” *® and that such statutes are to be construed in

part materia,” it should be clear that the subsequent

acts of Congress dealing with the Government’s trust

responsibilities are all part of a continuous purpose on

the part of Congress. The in pari materia rule is par-

ticularly appropriate here since it is typically used in

the case of multiple statutes dealing with the same legis-

lative purpose in order to determine the legislative intent

behind the earlier statute(s). See NLRB v. Bell Aero-

space Co., 416 U.S. 267, 275 (1974); Dir. Office of

Workers Compensation Programs v. Nat’l Mines Corp.,

554 F.2d 1267, 1275 (4th Cir. 1977). In fact, this Court

has already construed the General Allotment Act in

pari materia with other statutes, saying that they—

“

. constitute part of a single system evidencing

a continuous purpose on the part of Congress...

directed toward the benefit and protection of the

Indians... .” ™

Similarly, the Ninth Circuit, quoting Jackson, construed

the General Allotment Act in pari materia with subse-

quent Indian statutes, including the Indian Reorganiza-

tion Act. Stevens ¥. Comm’r, supra, 452 F.2d at 746.

89 Bryan Vv. Itasca County, 426 U.S. 373, 392 (1976) (citations

omitted). This Court has relied upon this canon on scores of occa-

sions beginning with Worcester v. Georgia, 31 U.S. 515, 582 (1832),

and it is particularly appropriate with respect to the statutes in

question here since all of them were passed ostensibly to benefit

the Indians.

% See, e.g., Menominee Tribe v. United States, 391 U.S. 404, 411

(1968) ; Stevens v. Comm’r, 452 F.2d 741, 746 (9th Cir. 1971);

Kirkwood Vv. Arenas, 243 F.2d 863, 866-867 (9th Cir. 1957).

*! United States v. Jackson, 280 U.S. 183, 196 (1930). One of

the statutes referred to by the Court, even though it was not di-

rectly involved, was the Act of June 25, 1910, which, inter alia,

authorized the sale of Indian timber. The Court noted with ap-

proval the Interior Department’s construction of that Act together

with the General Allotment Act in connection with its determina-

tion of heirs under the latter Act.

See as

Thus, it should be beyond dispute today that the General

Allotment Act and subsequent statutes, up to and in-

cluding the Indian Claims Commission Act, evidencing

the “continuing purpose on the part of Congress” to aid

and protect the Indians, must be construed together as

a declaration of legislative intent. Since that intent in-

cluded provisions for the sale and sustained yield man-

agement of Indian timber, Indians should be entitled to

sue under the Tucker Act when the Government has mis-

managed these functions.

IV. This Court, the Court of Claims, and Two Federal

District Courts Have Expressly or Tacitly Upheld

Jurisdiction Over Breach of Trust Damage Claims

Under 28 U.S.C. $§ 1491 and 1505.

A. Suits by Individual Indians Under the Tucker Act.

Individual Indians have the right to sue the United

States for money damages under the Tucker Act, 28

U.S.C. § 1491, the same as non-Indian plaintiffs. The

first such case of which we are aware that was char-

acterized as a breach of trust claim is Klamath and

Modoc Tribes v. United States, 364 F.2d 320 (Ct. Cl.

1966). In that case, a number of individual Indians (and

the Klamath Tribe) sued under 28 U.S.C. §§ 1491 and

1505 for a general accounting of trust funds. The Court

of Claims held that it did not have jurisdiction to order a

general accounting, but stressed that it did have jurisdic-

tion over the claims for damages based upon the mis-

management of Indian trust funds and property by the

United States:

“We emphasize that our action today [refusing to

order the United States to prepare an accounting]

does not leave the Klamath Tribe and the individual

Indians without a forum for the recovery of any

damages to which they are entitled because of the

Government’s mishandling of tribal funds and prop-

erty. No special jurisdictional act is required to

provide that relief.” *

In Mason v. United States, 461 F.2d 1864 (Ct.Cl.

1972), rev’d on other grounds, 412 U.S. 391 (1973),

the Court of Claims upheld jurisdiction under the Tucker

Act over a claim by an individual Indian heir alleging

that the United States had breached its trust obliga-

tions by using trus funds to pay a state tax on the

estate of a deceased Osage Indian. The Indian sought

damages for the wrongful disbursements from the trust.

The Court of Claims stated:

“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 Govern-

ment of its trust obligation under a federal statute,

is within 28 U.S.C. § 1491 as a claim founded upon

an Act of Congress and for damages ‘in cases not

sounding in tort.’ ” **

Contrary to the Government’s assertion (Br. 26 n.15),

the jurisdictional issue was contested and briefed by

both sides in the Court of Claims. Apparently, the

Government decided to abandon the jurisdictional issue

in this Court, and it was not argued again. This Court

did, however, note that the Government owed “great

care in administering its trust,” and that jurisdiction

was based upon 28 U.S.C. § 1491."

%2 364 F.2d at ——. Cf. four other Indian cases upholding juris-

diction under 28 U.S.C. § 1491. Though these were not expressly

characterized as breach of trust claims, the existence of the fidu-

ciary relationship was important. Fields v. United States, 423 F.2d

380 (Ct. Cl. 1970); Hebah v. United States, 428 F.2d 1834 (Ct. Cl.

1970) ; Capoeman v. United States, 440 F.2d 1002 (Ct. Cl. 1971);

Quinault Allottee Ass'n v. United States, 485 F.2d 1891 (Ct. Cl.

1973), cert. denied, 416 U.S. 961 (1974). The latter two were deci-

sions involving some of the instant plaintiffs.

98 461 F.2d at 1374.

412 U.S. at 391, and 394 n.5.

B. Suits by Tribes and Groups of Indians Under 28

USL. § 1505.

In four Court of Claims cases and two district court

cases, jurisdiction was expressly or tacitly upheld under

28 U.S.C. § 1505 for Indian tribal and group claims

against the Government for breach of trust.

In Klamath and Modoc Tribes v. United States, supra,

the Court of Claims held that it had jurisdiction over the

tribal claims for damages based upon the mismanage-

ment of Indian trust property by the United States.”

In Navajo Tribe v. United States, 364 F.2d 320 (Ct.

Cl. 1966), the Navajo Tribe alleged that it had received

inadequate compensation under three oil and gas leases

on its lands. Two of the claims were made under a

special jurisdictional act and the third under 28 U.S.C.

§ 1505. No question of the Court of Claims’ jurisdiction

was apparently ever raised, and the court evaluated

all three claims on the merits, awarding damages on two

and denying relief on the third.

In Cheyenne-Arapaho Tribes v. United States, 512

F.2d 1890 (Ct.Cl. 1975), a number of Indian tribes

brought suit under 28 U.S.C. § 1505 claiming damages

for the Government’s mismanagement in handling tribal

funds. The Court of Claims upheld jurisdiction over

the claims, citing Section 1505 and stating:

“TBlecause the United States in effect imposes trust

status on the Indian funds, our jurisdiction to review

discretionary acts of the Secretaries of the Interior

and Treasury in administering the trust is broad

enough to cover the types of claims made here.”

Finally, in Coast Indian Community v. United States,

550 F.2d 639 (Ct.Cl. 1977), a case decided after Testan,

% 364 F.2d at ——.

%6 512 F.2d at 1392.

the Court of Claims upheld the claim of an unincor-

porated association of Indians, presumably brought un-

der 28 U.S.C. § 1505, that the Government as trustee

had sold a logging right-of-way over their land for in-

adequate consideration. In finding a breach of fiduciary

duty and awarding damages, the court implicitly held

that it had jurisdiction over the claim.

Similarly, two district court cases have awarded dam-

ages in Indian breach of trust claims under the Tucker

Act. Manchester Band of Pomo Indians v. United States,

363 F. Supp. 1238 (ly.D. Cal. 1973), and Smith v.

oti States, Nos. C-74-1016 and C-74-1061 (N.D. Cal.

In view of the foregoing cases, it had been generally

thought that the jurisdiction of the Court of Claims

over breach of trust claims was well settled.

CONCLUSION

For the foregoing reasons, the decision of the Court

of Claims should be affirmed.

Respectfully submitted,

CHARLES A. HOBBS

1785 New York Avenue, N.W.

Washington, D.C. 20006

Counsel for Respondents

WILKINSON, CRAGUN & BARKER

JERRY R. GOLDSTEIN

ROBIN A. FRIEDMAN

Of Counsel

September 24, 1979

APPENDIX

einer

APPENDIX

UNITED STATES

DEPARTMENT OF THE INTERIOR

OFFICE OF THE SOLICITOR

Washington, D.C. 20240

[INTERIOR

SEAL]

= Nov. 21, 1978

Honorable James W. Moorman

Assistant Attorney General

United States Department of Justice

Washington, D.C. 20530

Re: United States v. Maine

Dear Mr. Moorman:

By letter of October 20, 1978, to the Attorney General,

I requested that Justice not file any pleading designed

to advise the federal district court of the government’s

view of the nature of the trust relationship between

the United States and Indian tribes. I hereby reaffirm

the views set forth in my October 20 letter. I did suggest

in the letter, however, that Justice and Interior continue

to work on the legal questions concerning the govern-

ment’s trust responsibility.

Congress has reposed principal authority for “the man-

agement of all Indian affairs and of all matters arising

out of Indian relations” with this Department. 25 U.S.C.

Sec. 2. As you no doubt realize, any legal memorandum

filed by the Attorney General on such a broad issue as

the trust respons*bility would have far reaching policy

implications. We have serious reservations about the

statement as originally drafted and I am attaching a

line by line critique, as promised, as a way to highlight

some of the disputed issues. To be of further assistance

to you, set forth below is this Department’s view of the

}

Engr ePer agra

legal obligations of the United States, as defined by the

courts, with respect to Indian property interests.

That the United States stands in a fiduciary relationship

to American Indian tribes, is established beyond question.

The specific scope and content of the trust responsibility

is less clear. Although the law in this area is evolving,

meaningful standards have been established by the de-

cided cases and these standards affect the government’s

administration of Indian policy. Our discussion is con-

fined to the government’s responsibilities concerning In-

dian property interests and should be understood in that

context. Our conclusions may be summarized as follows:

1. There is a legally enforceable trust obligation owed

by the United States Government to American Indian

tribes. This obligation originated in the course of deal-

ings between the government and the Indians and is re-

flected in the treaties, agreements, and statutes pertain-

ing to Indians.

2. While Congress has broad authority over Indian

affairs, its actions on behalf of Indians are subject to

Constitutional limitations (such as the Fifth Amend-

ment), and must be “tied rationally” to the govern-

ment’s trust obligation; however, in its exercise of other

powers, Congress may act contrary to the Indians’ best

interests.

8. The trust responsibility doctrine imposes fiduciary

standards on the conduct of the executive. The govern-

ment has fiduciary duties of care and loyalty, to make

trust property income productive, to enforce reasonable

claims on behalf of Indians, and to take affirmative ac-

tion to preserve trust property.

4. Executive branch officials have discretion to de-

termine the best means to carry out their responsibilities

to the Indians, but only Congress has the power to set

policy objectives contrary to the best interests of the In-

dians.

a ee Oe)

5. These standards operate to limit the discretion not

only of the Secretary of the Interior but also of the

Attorney General and other executive branch officials.

ORIGIN OF THE DOCTRINE

The origin of the trust relationship lies in the course of

dealings between the discovering European nations and

(later the original states and the United States) the

Native Americans who occupied the continent. The in-

teractions between these peoples resulted in the conclu-

sion by this country of treaties and agreements recog-

nizing the quasi-sovereign status of the Native Ameri-

can tribes.

The Supreme Court has stated that:

In the exercise of the war and treaty powers, the

United States overcaiue the Indians and took pos-

session of their lands, sometimes by force, leaving

them an uneducated, helpless and dependent people,

needing protection against the selfishness of others

and their own improvidence. Of necessity, the United

States assumed the duty of furnishing that protec-

tion, and with it the authority to do all that was

required to perform that obligation and to prepare

the Indians to take their place as independent, quali-

fied members of the modern body politic. Board of

County Commissioners v. Seber, 318 U.S. 705, 715

(1943).

Inplicitly, the Court recognized the course of history by

which the Indian tribes concluded treaties of alliance or

—after military conquest—peace and reconciliation with

the United States. In virtually all these treaties, the

United States promised to extend its protection to the

tribes. Consequently, the trust responsibility to Native

Americans has its roots for the most part in solemn

contracts and agreements with the tribes. The tribes

ceded vast acreages of land and concluded conflicts on

the basis of the agreement of the United States to protect

them from persons who might try to take advantage of

their weak position. No comparable duty is owed to

other United States citizens.

While the later executive agreements and presidential

orders implementing them with tribes are shorter and

less explicit than the treaties, a similar guarantee of pro-

tection can be implied from them. As the Court stated

recently in Morton v. Mancari, 417 U.S. 535 (1974),

then, “the unique legal status of Indian tribes under

federal law (is) . . . based on a history of treaties and

the assumption of a guardian-ward status.”

The treaties and agreements represented a kind of land

transaction, contract, or bargain. The ensuing special

trust relationship was a significant part of the consid-

eration of that bargain offered by the United States. By

the treaties and agreements, the Indians commonly re-

served part of their aboriginal land base and this reser-

vation was guaranteed to them by the United States.

By administrative practice and later by statute, the title

to this land was held in trust by the United States

for the benefit of the Indians.

From the beginning, the Congress was a full partner in

the establishment of the federal trust responsibility to

Indians. Article III of the Northwest Ordinance of 1787,

which was ratified by the first Congress assembled under

the new Constitution in 1789, 1 Stat. 50, 52, declared:

The utmost good faith shall always be observed to-

ward the Indians; their lands and property shall

never be taken from them without their consent; and

in their property, rights and liberty they shall never

be invaded or disturbed, unless in just and lawful

wars authorized by Congress; but laws founded in

justice and humanity shall, from time to time, be

ee ee R

made, for preventing wrongs being done to them, and

for preserving peace and friendship with them.

And in 1790, Congress enacted the Non-Intercourse Act,

1 Stat. 137, 138, now codified as 25 U.S.C. § 177, which

itself established a fiduciary obligation on the part of

the United States to protect Indian property rights. See

Joint Tribal Council of the Passamaquoddy Tribe v.

Morton, 528 F.2d 870 (1st Cir. 1975), and United

States v. Southern Pacific Transportation Co., 543 F.2d

676, 677-699 (9th Cir. 1976).

Articulation of the concept of the federal trust responsi-

bility as including more protection than simple federal

control over Indian lands evolved judicially. It first

appeared in Chief Justice Marshall’s decision in Cherokee

Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). Cherokee

Nation was an original action filed by the tribe in the

Supreme Court seeking to enjoin enforcement of state

laws on lands guaranteed to the tribe by treaties. The

Court decided that it lacked original jurisdiction because

the tribe, though a “distinct political community” and

thus a “state,” was neither a State of the United States

nor a foreign state and was thus not entitled to bring

the suit initially in the Court. Chief Justice Marshall

concluded that Indian tribes “may, more correctly, per-

haps, be denominated domestic dependent nations. . .

in a state of pupilage” and that “their relation to the

United States resembles that of a ward to his guardian.”

Chief Justice Marshall’s subsequent decision in Worcester

v. Georgia, 31 U.S. (6 Pet.) 515 (1832), reaffirmed the

status of Indian tribes as self-governing entities without,

however, elaborating on the nature or meaning of the

guardian-ward relationship.

Later in the nineteenth century, the Court used the

guardianship concept as a basis for congressional power,

separate and distinct from the commerce clause. United

States v. Kagama, 118 U.S. 375 (1886), concerned the

constitutionality of the Major Crimes Act. Although it

concluded that this statute was outside the commerce

power, the Court sustained the validity of the act by

reference to the Government’s fiduciary responsibility.

The Court stated that “[t]hese Indian tribes are the

wards of the nation. They are communities dependent

on the United States. ... From their very weakness

and helplessness . . . there arises the duty of protection,

and with it the power.”

A number of cases in the decades on either side of 1900

make express reference to such a power based on the

federal guardianship, e.g., LaMotte v. United States, 254

U.S. 570, 575 (1921) (power of Congress to modify

statutory restrictions on Indian land is “an incident of

guardianship”) ; Cherokee Nation v. Hitchcock, 187 U.S.

294, 308 (1902) (“The power existing in Congress ‘to ad-

minister upon and guard the tribal property”), and the

Supreme Court has continued to sustain the constitu-

tionality of Indian statutes as derived from an implicit

power to implement the “unique obligation” and “special

relationship” of the United States with tribal Indians.

Cf. Morton v. Mancari, 417 U.S. 345, 552, 555 (1973).

LIMITATIONS ON CONGRESS

Congressional power over Indian affairs is subject to

constitutional limitations. While Congress has the power

to abrogate Indian treaties, Lone Wolf v. Hitchcock, 187

U.S. 558 (1908), Indian property rights are protected

from repeal by the Fifth Amendment, Choate v. Trapp,

224 U.S. 665, 678 (1912). The Supreme Court held in

Chippewa Indians v. United States, 301 U.S. 358 (1937),

that

* * * Our decisions, while recognizing that the gov-

ernment has power to control and manage the prop-

erty and affairs of its Indian wards in good faith

for their welfare, show that this power is subject

to constitutional limitations and does not enable the

government to give the lands of one tribe or band

to another, or to deal with them as its own. * * *

(P. 375-376).

In addition to these constitutional limitations on Congress’

power to implement its trust responsibility, the Court

has observed that the guardianship “power to control

and manage” is also “subject to limitations inhering in

a guardianship,” United States v. Creek Nation, 295 U.S.

103, 110 (1935), although the cases do not clarify with

precision what limitations “inhere in a guardianship”

so far as Congress is concerned. Recent cases have, how-

ever, considered the United States’ trust obligations as an

independent limiting standard, for judging the consti-

tutional validity of an Indian statute, rather than solely

a source of power. In Morton v. Mancari, 417 U.S. 535

(1974), the Supreme Court upheld the constitutionality

of a statute granting Indians an employment preference

in the Bureau of Indian Affairs, stating:

As long as the special treatment can be tied ra-

tionally to the fulfillment of Congress’ unique obliga-

tion toward the Indian, such legislative judgments

will not be disturbed. Id. at 555.

Delaware Tribal Business Council v. Weeks, 430 U.S. 73

(1977), expressly held that the plenary power of Congress

and the separation of powers shield “does not mean that

all federal legislation concerning Indians is . . . immune

from judicial scrutiny.” The Court in Weeks took the

significant step of examining on the merits claims by

one group of Indians that legislation had denied them due

process, and it applied the above-quoted standard from

Mancari.

This standard, in practice, does not suggest that a re-

viewing court will second guess a particular determina-

Lp REE pee RR pe TN eee

cacao

tion by Congress that a statute in fact is an appropriate

protection of the Indians’ interests. Congressional discre-

tion seems necessarily broad in that respect. But the

power of Congress to implement the trust obligation would

not seem to authorize enactments which are manifestly

contrary to the Indians best interests. This does not mean

that Congress could never pass a statute contrary to its

determination that the Indians’ best interests are served

by it. Congress in its exercise of other powers such as

eminent domain, war, or commerce, may act in a man-

ner inimical to Indians. However, where Congress is

exercising its authority over Indians, rather than some

other distinctive power, the trust obligation would ap-

pear to require that its statutes must be based on a

determination that the protection of the Indians will be

served. Otherwise, a statute would not be rationally re-

lated to the trusteeship obligation to Indians. Cf., Fort

Berthold Reservation v. United States, 390 F.2d 686, 691-

693 (Ct. Cl. 1968).

The trust obligations of the United States constrain con-

gressional power in another way. Since it is exercising

a trust responsibility in its enactment of Indian statutes,

courts presume that Congress’ intent toward the Indians

is benevolent. Accordingly, courts construe statutes (as

well as treaties) affecting Indians as not abrogating prior

Indian rights or, in case of ambiguity, in a manner favor-

able to the Indians. E.g., United States v. Santa Fe

Pacific Ry., 314 U.S. 339 (1941). This presumption is

rebuttable in that the courts have also held that Congress

can unilaterally alter treaty rights or act in a fashion

adverse to the Indians interests—even to the point of

terminating the trust obligation. But such an intent

must be “clear,” “plain” or “manifest” in the language

or legislative history of an enactment. Rosebud Sioux

Tribe v. Kneip, 430 U.S. 584 (1977).

LIMITATION ON ADMINISTRATIVE DISCRETION

In Indian, as in other matters, federal executive officials

are limited by the authority conferred on them by

statute. In addition, the federal trust responsibility im-

poses fiduciary standards on the conduct of the executive

—unless, of course, Congress has expressly authorized a

deviation from those standards. Since the trust obligation

is binding on the United States, fiduciary standards of

conduct would seem to pertain to all executive depart-

ments that may deal with Indians, not just those such

as the Departments of Interior and Justice which have

special statutory responsibilities for Indian affairs. This

principle is implicit in United States v. Winnebago Tribe,

542 F.2d 1002 (8th Cir, 1976), where the court employed

the canon of construction that ambiguous federal stat-

utes should be read to favor Indians to thwart the

efforts of the Army Corps of Engineers to take tribal

land.

A number of court decisions hold that the federal trust

responsibility constitutes a limitation upon executive au-

thority and discretion to administer Indian property and

affairs. A leading case is United States v. Creek Nation,

295 U.S. 103 (1935), where the Supreme Court affirmed

a portion of a decision by the Court of Claims awarding

the tribe money damages against the United States for

lands which had been excluded from their reservation and

sold to non-Indians pursuant to an incorrect federal

survey of reservation boundaries. The Court bottomed

its decision on the federal trust doctrine:

The tribe was a dependent Indian community under

the guardianship of the United States and therefore

‘its property and affairs were subject to the control

and management of that government. But this power

to control and manage was not absolute. While ex-

tending to all appropriate measures for protecting

Po PO Dm me et UAL NILE PO

10a

and advancing the tribe, it was subject to limita-

tions inhering in such a guardianship and to per-

tinent constitutional restrictions. 295 U.S. at 109-

110. (emphasis added)

Creek Nation stands for the proposition that—unless

Congress has expressly directed otherwise—the federal

executive is held to a strict standard of compliance with

fiduciary duties. For example, the executive must exer-

cise due care in its administration of Indian property; it

cannot as a result of a negligent survey “give the tribal

lands to others, or . . . appropriate them to its own

purposes.” Other decisions of the Supreme Court review-

ing the lawfulness of administrative conduct managing

Indian property have held officials of the United States

to “obligations of the highest responsibility and trust”

and “the most exacting fiduciary standards,” and to be

bound “by every moral and equitable consideration to dis-

charge its trust With good faith and fairness.” Seminole

Nation v. United States, 316 U.S. 286, 296-297, (1942) ;

United States v. Payne, 264 U.S. 446, 448 (1924). De-

cisions of the Court of Claims have also held that the or-

dinary standards of a private fiduciary must be adhered

to by executive officials administering Indian property.

E.g., Coast Indian Community v. United States, 212 “t.

Cl. 129, 550 F.2d 639 (1977) ; Cheyenne-Arapahoe Tes

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

Menominee Tribe v. United States, 101 Ct. Cl. 10, 18-19

(1944) ; Navajo Tribe v. United States, 364 F.2d 320,

322-324 (Ct. Cl. 1966).

Creek Nation and the other cited cases were for money

damages under special jurisdictional statutes in the

Court of Claims. Other decisions have granted declara-

tory and injunctive relief against executive actions in

violation of ordinary fiduciary standards. An impox-

tant exampie is Lane v. Pueblo of Santa Rosa, 249 U.S.

110 (1919), where the Supreme Court enjoined the Secre-

lla

tary of the Interior from disposing of tribal lands under

the general public land laws. That action, the Court ob-

served, “would not be an exercise of the guardianship,

but an act of confiscation.” 249 U.S. at 113.

Federal officials as trustees are not insurers. The case

of United States v. Mason, 411 U.S. 391 (1973), sustains

as reasonable a decision by the Interior Department

not to question certain state taxes on trust property.

But the case law in recent years generally holds execu-

tive action to be reviewable both under the terms of

specific statutes and for breach of obligations of an or-

dinary trustee. A significant recent federal district court

decision, Pyramid Lake Paiute Tribe v. Morton, 354 F.

Supp. 252 (D.D.C. 1972), enjoins certain diversions of

water for a federal reclamation project which adversely

affected a downstream lae on an Indian reservation.

Although the diversions violated no specific statute or

treaty, the court held them in violation of the trust

responsibility.

The court held that the Secretary of the Interior—as

trustee for the Indians—was obliged to discharge his

potentially conflicting duty to administer reclamation

statutes in a manner which does not interfere with In-

dian rights. The court restrained the diversions because

the Secretary’s activities failed “to demonstrate an ade-

quate recognition of his fiduciary duty to the Tribe.”

The Department of Justice acquiesced in this decision

and chose not to appeal.

If, as we believe, the decisions in such cases as Creek

Nation, Pueblo of Santa Rosa, and Pyramid Lake are

sound, it follows that executive branch officials are ob-

liged to adhere to fiduciary principles. These cases, in

is in fact a trustee for the Indians and executive branch

officials must act in accordance with trust principles

unless Congress specifically directs otherwise.

12a

INDEPENDENT EXISTENCE

In addition, the decided cases strongly suggest that the

trust obligation of the United States exists apart from

specific statutes, treaties or agreements. As previously

stated, the Supreme Court in United States v. Kagama,

118 U.S. 375 (1886), sustained the validity of the Major

Crimes Act on the basis of the trust relationship, sep-

arate and apart from other constitutiona! powers. And

Lane Vv. Pueblo of Santa Rosa, 249 U.S. 110 (1919),

United States v. Creek Nation, 295 U.S. 103 (1985),

and Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp.

252 (D.D.C. 1972), apply the trust responsibility to re-

strain executive action without regard to any specific

treaty, statute or agreement.

This view is reinforced by reference to the origins of

the trust responsibility doctrine. Originally, Great Brit-

ain claimed for. itself sovereignty over all Indian lands

in the English colonies. In 1763, the King issued a

Royal Proclamation, the precursor of the federal Non-

Intercourse Act, decreeing that Indian lands were owned

by the Crown and that no person or government could

acquire such lands without the consent of the Crown.

This policy reflected the practical need of the Crown

to assert its control over the land and wealth of the

colonies and to preserve peace among the colonists and

the Indians. Notably, the 1763 Proclamation applied to

all Indians without regard to the presence or absence of

specific treaties or agreements.

When the United States acquired sovereignty from Great

Britain, it succeeded to all the incidents of the prior

sovereign’s power. The United States not only did not

renounce the peculiar power and duty assumed by Great

Britain over Indians, but endorsed it by specific reference

in Article I of the Constitution.

13a

The recent decision in Delaware Tribal Business Coun-

cil v. Weeks, 480 U.S. 73 (1977), holds that the trust

responsibility is subject to due process limitations. Weeks

holds that Congress is not free to legislate with respect

to Indians in any manner it chooses; rather, Congres-

sional action with respect to Indians is subject to ju-

dicial review and will be sustained only so long as it

can be “tied rationally to the fulfillment of Congress’

unique obligation toward the Indians.”

Other recent Supreme Court opinions shed further light

on what is meant by the “unique obligation toward the

Indian.” In Morton v. Ruiz, 415 U.S. 199 '(1974), the

Court in holding that the Bureau of Indian Affairs erred

in excluding a certain category of Indians from the bene-

fits of its welfare program spoke of the “overriding duty

of our Federal Government to deal fairly with Indians.”

415 U.S. at 236. This statement appears as part of the

procedural rights of Indians, and in this connection the

Court cited Seminole Nation v. United States, 316 U.S.

286, 296 (1942), which says governmental action must

be judged by the “strictest fiduciary standards.” Most

recently, in Santa Clara Pueblo v. Martinez, —— U.S.

—— (1978), the court reviewed the record of limited

Indian participation in the hearings on the Indian Civil

Rights Act and said:

It would hardly be consistent with “the overriding

duty of our Federal Government to deal fairly with

Indians,” Morton v. Ruiz, 415 U.S. 199, 286 (1974),

lightly to imply a cause of action on which the tribes

had no prior opportunity to present their views.

— US. ’ n.380 (1978).

The “unique obligation” mentioned in Weeks and the

“overriding duty” of fairness discussed in Ruiz and Mor-

tinez exist apart from any specific statute, treaty or

agreement, and they impose substantive constraints on

the Congress (Weeks), the Executive (Ruiz) and the Ju-

———

14a

diciary (Martinez) with respect to Indians. These re-

cent decisions of the Supreme Court lead to the conclu-

sion that the government’s trust responsibility to the

Indian has an independent legal basis and is not limited

to the specific language of the statutes, treaties and

agreements.

At the same time, however, the content of the trust obli-

gation—apart from specific statutes and treaties—is

limited to dealing fairly, not arbitrarily, with the Indians

both with respect to procedural and substantive issues.

The standard of fairness is necessarily vague and allows

considerable'room for discretion. But these independently

based duties do not stand alone. They must be read to-

gether with the host of statutory and treaty provisions

designed to provide protection for Indian interests. [llu-

strative of such statutes are 25 U.S.C. Sec. 81 (con-

tracts); 25 U.S.C. Sec. 175 (legal representation) ; 25

U.S.C. Sec. 177 (conveyance of property); 25 U.S.C.

Sec. 194 (burden of proof in property cases) ; 25 U.S.C.

Sees. 261-264 (regulation of traders); 25 U.S.C. Sec.

465 (acquisition of land in trust).

The more general notions of the “unique obligations” and

“overriding duty” of fairness form a backdrop for the

construction and interpretation of the statutes, treaties,

and agreements respecting the Indians. This means that

provisions for the benefit of Indians must be read to give

full effect to their protective purposes and also they must

be given a broad construction consistent with the trust

relationship between the government and the Indians.

General notions of fiduciary duties drawn from private

trust law form appropriate guidelines for the conduct of

executive branch officials in their discharge of responsi-

bilities toward Indians and are properly utilized to fill

any gaps in the statutory framework.

15a

SPECIFIC OBLIGATIONS

The decided cases set forth a number of specific obli-

gations of the trusteeship. Navajo Tribe v. United States,

364 F.2d 320 (Ct. Cl. 1966). During the second World

War, an oil company had leased tribal land for oil and

gas purposes. Upon discovering helium, bearing noncom-

bustible gas which it had no desire to produce, the com-

pany assigned the lease to the Federal Bureau of Mines.

The Bureau developed and produced the helium under the

terms of the assigned lease instead of negotiating a new,

more remunerative lease with the tribe. In Navajo, the

court analogized these facts to the case of a “fiduciary

who learns of an opportunity, prevents the beneficiary

from getting it, and seizes it for himself,” and held the

action unlawful. Pyramid Lake discussed above also in-

volves the fiduciary duty of loyalty.

Manchester Band of Pomo Indians v. United States, 368

F. Supp. 1238:(N.D. Cal., 1973), holds that the govern-

ment as trustee has a duty to make trust property income

productive. The federal district court held, in that case,

that officials of this Department had violated their trust

obligations by failing to invest tribal funds in nontreas-

ury accounts bearing higher interest than was paid by

treasury accounts. Menominee Tribe v. United States,

101 Ct. Cls. 10 (1944), also enforces the fiduciary obli-

gation to make trust property income productive.

Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252

(D.D.C. 1972), imposes on the United States the duty to

enforce reasonable claims of the beneficiary. This duty

may be seen as related to the duty of loyalty. In Pyramid

Lake, the court rejected an accommodation of public

interests and trust obligations and held that the Secre-

tary of Interior had a higher obligation to protect Indian

property rights than to advance public projects within his

charge—-again, absent an express direction from Con-

ae eet eS eS ee eee

16a

gress. Where there is a dispute between Indians and

other government interests, executive branch officials are

required to favor the Indian claim so long as it is reason-

able.

The Supreme Court has held that executive branch of-

ficials are not required to advance or accede to every

colorable claim which may be suggested by an Indian

tribe. United States v. Mason, 412 U.S. 391 (1973). It

appears that the government may properly examine these

claims critically and make a dispassionate analysis of

their merit, it may consider whether the advancement of

a particular claim is in the long term best interests of the

Indians, and it may determine the timing and the forum

in which a claim is advanced. But executive branch of-

ficials may not reject or postpone the assertion of a claim

on behalf of Indians on the ground that it would be

inimical to some other governmental or private interest

or refuse to advance an Indian claim on the ground that

it is merely “reasonable” as opposed to clearly “meri-

torious.” Although trust duties are neither rigid nor

absolute, the controlling principle is that executive branch

officials must act in the best interests of the Indians.

The Supreme Court has held that the United States as

trustee has some discretion to exercise reasonable judg-

ment in choosing between alternative courses of action.

United States v. Mason, 412 U.S. 391 (1973). In Mason,

Indian allottees claimed that Bureau of Indian Affairs

officials erred in paying state estate tax assessments on

trust properties. Bureau officials relied on a prior de-

cision of the Supreme Court which had sustained the

particular taxes in question. With some plausibility,

however, the allottees claimed that subsequent Supreme

Court decisions had eroded the vitality of the earlier case.

The Court determined that in this instance the trustee

had acted reasonably by paying the taxes without pro-

test. In Mason, unlike Pyramid Lake, there was no sug-

17a

gestion that any conflicting interests had detracted from

the trustee’s duty of loyalty to the Indians, and the case

stands for the proposition that in the nonconflict situation,

the trustee’s reasonable judgments will be sustained.

Another principle which follows from this reading of the

Indian trust cases is that affirmative action is required

by the trustee to preserve trust property, particularly

where inaction results in default of trust rights. Cf.,

Poafybitty v. Skelly Oil Co., 390 U.S. 365, 369 (1968) ;

Edwardsen v. Morton, 369 F. Supp. 1859 (D.D.C. 1978).

The water rights area is a prime example. The Indians’

rights to water pursuant to cases like Winters v. Uvxited

States, 207 U.S. 564 (1908), and Arizona v. California,

873 U.S. 546 (1963), is prior to any subsequent appro-

priations. But failure of the trustee in the past to assert

or protect these rights, and to assist in construction of

Indian irrigation projects, has led non-Indian ranchers

and farmers to invest large sums in land development in

reliance on the seeming validity of their appropriations.

See Report of the National Water Commission, ch. 14

(1973). The trust obligation would appear to require the

trustee both to take vigorous affirmative action to assert

or defend these Winters Doctrine claims. See, Pyramid

Lake Paiute Tribe v. Morton, supra.

The impact of these principles upon the public adminis-

tration within the government appears to be surprisingly

modest, for present policies are essentially consistent with

the dictates of the trust responsibility. In the area of

water rights, for example, President Carter has called

for the prompt quantification of Indian claims and their

determination through negotiation if possible or litigation

if necessary, and he has also called for development of

Indian water resources projects so that the Indian rights

may be put to beneficial use. The President’s perception

of the government’s responsibility in this area appears

entirely consistent with the dictates of the trust responsi-

18a

bility doctrine. The obligation of executive branch officials

is to implement the President’s policy. Similarly, the

Departments of Interior and Justice are engaged in the

process of enforcing reasonable Indian claims in some

instances by negotiation and in others through litigation.

The Bureau of Indian Affairs works to make trust prop-

erty income productive and the present Secretary of the

Interior, so far as we are aware, has taken no action

inconsistent with his duty of loyalty to the Indians.

Even if the imposition of the trust responsibility doc-

trine is assumed to be completely consistent with present

policy and administrative practice, the doctrine clearly

places constraints on the future policy formulation and

administrative discretion. Executive branch officials have

some discretion in the discharge of the trust, but it is

limited. For example, they may make a good faith de-

termination that the compromise of an Indian claim is in

the long term best interests of the Indians, but they are

not free to abandon Indian interests or to subordinate

those interests to competing policy considerations. Flexi-

bility in setting policy objectives rests with Congress

which alone is free to direct a taking or subordination

of the otherwise paramount Indian interests.

Instances will surely arise where the discharge of trust

responsibilities to the Indians raises unmanageable, prac-

tical or political difficulties for executive branch officials.

It may be that congressional appropriations are inade-

quate to carry out a perceived duty—say, the quantifi-

cation of Indian water entitlements—or that the enforce-

ment of trust responsibilities results in an extraordinary

intense political backlash against the administration. Un-

der such circumstances, it would seem that the responsi-

bility of éxecutive branch officials would be to seek ex-

press direction from the Congress. The existence of this

congressional safety valve assures that the legal trust

responsibility to American Indians is a viable doctrine

not only now but in the future as well.

—— — a x

Ce. oe 2 ee - - a tn

. 2 ita SS ererae eee eee ee —

19a

THE DEPARTMENT OF JUSTICE

The remainder of this memorandum will address some

of the more specific questions which have been raised by

the Attorney General in connection with litigation by the

Department of Justice on behalf of Indians. How does

Indian litigation differ, if at all, from other litigation

handled by the Department of Justice? Do special stand-

ards constrain the prosecutorial discretion of the Attor-

ney General?

By statute, the conduct of litigation in which the United

States is a party is reserved to the officers of the Depart-

ment of Justice under the direction of the Attorney Gen-

eral. 28 U.S.C. 516, 519. In addition, the United States

Attorneys, under the direction of the Attorney General,

are specifically authorized to represent Indians in all

suits at law and in equity. 25 U.S.C. 175.

Generally, the Attorney General has broad discretion to

determine whether and when to initiate litigation and on

what theories. As the chief legal officer of the United

States, the Attorney General may consider broad policy

consequences of a litigation strategy and may refuse to

initiate litigation despite the requests of a particular

agency.

The discretion of the Attorney General with respect to the

initiation of litigation is not unlimited. First, the exer-

cise of prosecutorial discretion by the Attorney General

is subject to judicial review in order to insure that the

Attorney General’s decision is based on a correct under-

standing of the law. Joint Tribal Council of the Passa-

maguoddy Tribe v. Morton, 388 F. Supp. 649, 665-666

(D. Me. 1975), aff'd, 528 F.2d 370 (1st Cir. 1975). Cf.

e.g., Nader v. Saxbe, 497 F.2d 676, 679-680 n. 19 (D.C.

Cir. 1974). And second, all executive branch officials

including the Attorney General can be required by the

judiciary to “faithfully execute the laws” which, in some

——

20a

instances, may require the initiation of litigation. E.g.,

Adams v. Richardson, 351 F. Supp. 636, 641 (D.D.C.

1972), 356 F. Supp. 921 (D.D.C. 1973), mod. and aff’d.,

480 F.2d 1159 (D.C. Cir. 1973).

In the case of Indian litigation, the Attorney General’s

discretion is some~hat more limited than in other areas.

As under the principles discussed above, an officer of the

executive branch of government the Attorney General

acts as a fiduciary and must accord the Indians a duty

of loyalty. This means that in the exercise of discretion

the Attorney General may not refuse to initiate litigation

on the ground that it would be inimical to the welfare of

some other governmental or private interest. And the

Supreme Court has suggested that the Attorney General

has an affirmative obligation to institute litigation on be-

half of Indians. Poafybitty v. Skelly Oil, 390 U.S. 365,

369 (1968).

The Attorney General has no obligation to assert every

claim or theory advanced by an Indian tribe without re-

gard to its merit. At the same time, the Attorney Gen-

eral may not abandon reasonable Indian claims on any

ground other than the best interests of the Indians.

Further, in the exercise of discretion, the Attorney Gen-

eral must take care that litigation decisions do not under-

cut the efforts of the Secretary of Interior or other

executive branch officials to discharge their trust re-

sponsibilities to the Indians. As the Supreme Court

recently stated: “Where the responsibility for rendering

a decision is vested in a coordinate branch of Government,

the duty of the Department of Justice is to implement

that decision and not repudiate it.” S & E Contractors,

Inc. Vv. United States, 406 U.S. 1, 13 (1972). Indeed,

published opinions of the Attorney General reflect the

great deference which has been accorded by the Depart-

ment of Justice to the decisions of the Secretary of

Interior. 25 Op. Atty. Gen. 524, 529 (1905); 20 Op.

2la

Atty. Gen. 711, 713 (1894) ; 17 Op. Atty. Gen. 332, 333

(1882).

The fulfillment of this nation’s trust responsibility to

American Indians is one of the major missions of this

Department. Both the President and the Vice-President

have publicly stated their support of the trust responsi-

bility as a matter of policy.

The definition of the government’s trust responsibilities

to Native Americans involves both legal and policy issues.

The President’s P.R.I.M. process is designed to assure

development of policy after input from all concerned. It

would be unfortunate to preempt this process by filing a

memorandum in a court case that was not asked for by

the judge and is not necessary to the litigation which will

be moot if Congress and the tribes approve. If the At-

torney General wants to address the legal issues regard-

ing the trust responsibility, it would be more appropriate

to do so through a formal Attorney General’s opinion.

Sincerely

LEO M. KRULITZ

Solicitor

[Ed. note: This letter received wide distribution among

Indian tribal representatives. ]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.