# Respondents Brief — United States v. Mitchell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0230%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1980 - **Citation:** 445 U.S. 535 ## Text f , 1" ha 7 ‘ . i] ~ : \ 4 : " i —_—— | “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, V. 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 - ww =p SNOHOMISH Te 160 UPPER SKAGIT 183 + jy STILLAGUAMISH ay, 157 — ! | | ‘ J MUCKLESHOOT , 168 ; ° * 4 2°. (way pig i x D a Quinault egy Reservation ~% Aboriginal 4 tow territories of Ih aw tribes for whose ) bi benefit the Quin- a / ault Reservation |, . was established. \ , "3 f Cc * CHINOOK \ W6 f Wess ” 1 O @ Astoria # CLATS! 108 } a - | Nd —_ r ‘-_x r 7 4 > x | “3 ~~ . \ i g . e 122° 124° 123 STATEMENT OF THE CASE .. SUMMARY OF ARGUMENT TABLE OF CONTENTS IE eilenesialiahiccingntasithinminn teat ncinnmtaenisannpenascndnitanatn’ I, 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 20 28 30 ii 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 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 23 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. 24 “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, 25 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). 26 “(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 27 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. Le 28 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 29 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. —~ 30 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 31 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. 32 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 33 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 34 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 35 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 (c) Charging improper and excessive costs against 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. 36 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. 37 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 Se 88 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 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). 39 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. ee A A RE eh Pa 40 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 41 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 42 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 43 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. © Plaintiffs’ Exhibit DT 3.8-1.1. 44 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. 45 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 46 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- 47 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. 48 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. 49 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 la 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 2a 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) 3a 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 4a 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 5a 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 6a 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 7a 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 ee 8a 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). 9a 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 other words, lead to the conclusion that the government © 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 ee —— 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. ] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0230%3A6. Public record. Not legal advice.