Petition — Whiskers v. United States

October Term, 1979

No. 79-

CHLOE WHISKERS, ANNIE CANTSEE, VELMA MILLS,

JAMES MILLS, MARSHALL WHYTE, RAYMOND STEWART

HATCH, and ANNA MARIE NAT,

Petitioners,

Vv.

THE UNITED STATES OF AMERICA; CECIL D. ANDRUS,

as Secretary of the Interior; and FORREST J.

GERARD, as Assistant Secretary of the Interior

for Indian Affairs,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

Richard B. Collins

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

Telephone: 303/447-8760

Thomas E. Luebben

Richard W. Hughes

805 Tijeras, N.W.

Albuquerque, New Mexico 87102

Counsel for Petitioners

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-

CHLOE WHISKERS, ANNIE CANTSEE, VELMA MILLS,

JAMES MILLS, MARSHALL WHYTE, RAYMOND STEWART

HATCH, and ANNA MARIE NAT,

Petitioners,

Ve

THE UNITED STATES OF AMERICA; CECIL D. ANDRUS,

as Secretary of the Interior; and FORREST J.

GERARD, as Assistant Secretary of the Interior

for Indian Affairs,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

Richard B. Collins

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

Telephone: 303/447-8760

Thomas E. Luebben

Richard W. Hughes

805 Tijeras, N.W.

Albuquerque, New Mexico 87102

Counsel for Petitioners

CONTENTS

GRGmee MRM ct tt ttl tt

OBMPERE EE 6 te rt et tlt et 8

QUESTION PRESENTED . . . 2 «© « « « «

es | EB 8: :

STATEMENT OF THE CASE .......

REASONS FOR GRANTING THE WRIT ...

A. The Secretary's Actions

Thwarted the Intent of

i oe ele ss 6 5 «8

B. Plaintiffs Have a Cause

of Action for Damages ...

C. Trust Principles Control. .

CONCLUSION .......

ae a

Opinion of the District Court .

Opinion of the Court of Appeals

Order Denying Rehearing... .

AUTHORITIES

CASES

Bryan v. Itasca County, 426 U.S.

373 (1976)

Choate v. Trapp, 224 U.S. 665 (1912)

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

373 F.2d 1002 (Ct.Cl. 1967)

Seminole Nation v. United States,

316 U.S. 286 (1942)

Squire v. Capoeman, 351 U.S. 1 (1956)

United States v. Mason, 412 U.S.

391 (1973)

l4a

33a

PAGE

12-13

13

ii

PAGE

United States v. Testan, 414 U.S.

392 (1976) 11, 12

STATUTES

79 Stat. 108 (1965) 7

82 Stat. 1147 (1968) 2; 4, &,- 20

25 U.S.C. 70a $$, 0,

25 U.S.C. 70u 5-6, 10, 11

25 U.S.C. 151-165 13

31 U.S.C. 725s(a) (20) 13

25 U.S.C. 741-760 8

28 U.S.C. 1346(a) (2) 6

OTHER

Federal and State Indian Reservations

and Indian Trust Areas (U.S. Dept.

of Commerce 1974) 8

Note, Indian Tribal Funds, 27

Hast.L.J. 519 (1975) 13

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully pray that a

writ of certiorari issue to review the judgment

and opinion of the Court of Appeals for the Tenth

Circuit entered in this proceeding on June 14,

1979, and the denial of rehearing on August 14,

1979.

OPINIONS BELOW

The opinion of the Court of Appeals is

reported at 600 F.2d 1332 (10th Cir. 1979) and is

printed in the Appendix at page 14a. The opinion

of the District Court for the District of Utah is

unreported and is printed in the Appendix at page

la.

JURISDICTION

The judgment of the Court of Appeals

was entered on June 14, 1979. A timely motion

for rehearing was denied on August 14, 1979. On

November 1, 1979, Mr. Justice White granted peti-

tioners' application for an extension of the time

for filing a petition for certiorari through

December 12, 1979. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether individual Indians who are

entitled to share in a claims judgment fund have

a cause of action for damages against the United

States, when the Secretary of the Interior fails

to make any reasonable effort to notify them of

the existence of the fund or enrollment pro-

cedures, thereby excluding them from their share

of the fund.

STATUTES INVOLVED

1. The Southern Paiute Judgment Dis-

tribution Act, Pub.L. 90-584, 82 Stat. 1147 (1968):

Be it enacted by the Senate and House of

Representatives of the United States of America

in Congress assembled, That for the purpose of

disposing of the sum of $7,253,165.19 appropri-

ated April 20, 1965 (79 Stat. 81, 108, 109), to

pay a judgment of the Indian Claims Commission

entered in its dockets numbered 88, 330, and

330-A on January 18, 1965, on behalf of the

Southern Paiute Nation, the bands and groups of

Southern Paiute Indians named in the petitions

and the Las Vegas Band together with interest

accruing thereon, the Secretary of the Interior

shall prepare a roll of all persons who meet the

following requirements for eligibility: (a) they

were born on or prior to and living on the date

of this Act and are (b) enrolled or entitled to

be enrolled as members of the Kaibab Band of

Paiute Indians of the Kaibab Reservation, Arizona,

or (c) enrolled or entitled to be enrolled as

members of the Moapa Band of Paiute Indians of

the Moapa River Reservation, Nevada, or (d) whose

names or the name of a lineal ancestor appears on

the final rolls of the Shivwits, Kanosh, Koosharem,

and Indian Peaks Bands of Paiute Indians which

were prepared pursuant to the Act of September 1,

1954 (68 Stat. 1099), or (e) Southern Paiute

Indians whose names of the name of a lineal an-

' cestor appears on the January 1, 1940, census roll

of the Cedar City, Utah, Indians, or (f) Southern

Paiute Indians whose names or the name of a lineal

ancestor appears on the January 1, 1940, census

roll of the Las Vegas Colony, Nevada, or (g) In-

dians living elsewhere who can establish Southern

Paiute lineal descent to the satisfaction of the

Secretary of the Interior: Provided, however,

That no enrollee shall have elected or shall

elect to participate in the judgment awarded by

the Indian Claims Commission in its dockets num-

bered 31, 37, 80, 80-D, and 347, granted to "Cer-

tain Indians of California" or in dockets numbered

351 and 351-A granted to the Chemehuevi Tribe of

Indians. Any person qualifying for enrollment as

a member of more than one of the named Indian

groups shall elect which group he chall be enrolled

for the purpose of this Act.

Sec. 2. Applications for enrollment

must be filed with the Area Director, Bureau of

Indian Affairs, Phoenix, Arizona, in the manner

and within the time limits prescribed by the

Secretary for that purpose. The Secretary's

determination on all applications for enrollment

shall be final.

Sec. 3. The cost of preparing the

Southern Paiute Indian roll, and of disposing

of the judgment funds, and the deduction of

attorneys’ fees and expenses and the cost of

litigation, shall be deducted from the judgment

fund. The balance of said fund, together with

accrued interest, shall be apportioned by the

Secretary of the Interior among the groups of

persons entitled to enrollment on the Southern

Paiute Indian roll as provided in Section 1 of

this Act. Apportionment among said groups shall

be on the ratio that the number of enrollees in

each group shall bear to the total number en-

rolled on the Southern Paiute Indian roll.

Sec. 4. The total amounts apportioned

to the groups enrolled in section 1 (bh) and (c)

shall be redeposited in the Treasury of the United

States to the credit of the respective bands, and

may be advanced, expended, invested, or re-

invested in any manner authorized by the governing

body and approved by the Secretary.

Sec. 5. The funds apportioned to

those Southern Paiute Indians enrolled under sec-

tions 1 (f) aid (g) shall be available for dis-

tribution in e<ual shares to the enrollees except

as provided in section 6 of this Act.

Sec. 6. Sums payable to enrollees or

their heirs or legatees who are less than twenty-

one years of age or who are under a legal disability

shall be paid in accordance with such procedures

as the Secretary determines will best protect their

interests, including the establishment of trusts.

Sec. 7. All funds, including interest,

of the adult members of any group enrolled pur-

Suant to sections 1 (d) and (e) of this Act may

be advanced, expended, invested, or reinvested

in any manner pursuant to a plan agreed upon be-

tween the governing body thereof or by the members

thereof, at a meeting called in accordance with

rules approved by the Secretary of the Interior,

and the Board of Indian Affairs of the State of

Utah, subject, however, to the previous approval

of such plan by the Secretary of the Interior.

However, the Secretary of the Interior shall not

be charged with any responsibility in the adminis-

tration of the funds.

Sec. 8. No part of the per capita

distributions made under authority of this Act

shall be subject to Federal or State income tax.

Sec. 9. The Secretary is authorized to

prescribe rules and regulations to carry out the

provisions of this Act.

2. First paragraph of section 2 of the

Indian Claims Commission Act, 25 U.S.C. 70a:

The Commission shall hear and deter-

mine the following claims against the United States

on behalf of any Indian tribe, band, or other

identifiable group of American Indians residing

within the territorial limits of the United States

or Alaska: (1) claims in law or equity arising

under the Coustitution, laws, treaties of the

United States, and Executive orders of the Presi-

dent; (2) all other claims in law or equity, in-

cluding those sounding in tort, with respect to

which the claimant would have been entitled to

sue in a court of the United States if the United

States was subject to suit; (3) claims which would

result if the treaties, contracts, and agreements

between the claimant and the United States were

revised on the ground of fraud, duress, uncon-

scionable consideration, mutual or unilateral

mistake, whether of law or fact, or any other

ground cognizable by a court of equity; (4) claims

arising from the taking by the United States,

whether as the result of a treaty of cession or

otherwise, of lands owned or occupied by the

claimant without the payment for such lands of

compensation agreed to by the claimant; and (5)

claims based upon fair and honorable dealings that

are not recognized by any existing rule of law or

equity. No claim accruing after August 13, 1946,

shall be considered by the Commission... .

3. Section 22 of the Indian Claims

Commission Act, 25 U.S.C. 70u:

(a) When the report of the Commission

determining any claimant to be entitled to recover

has been filed with Congress, such report shall

have the effect of final judgment of the Court of

Claims, and there is authorized to be appropriated

such sums as are necessary to pay the final deter-

mination of the Commission.

The payment of any claim, after its

determination in accordance with this chapter,

shall be a full discharge of the United States of

all claims and demands touching any of the matters

involved in the controversy.

(b) A final determination against a

claimant made and reported in accordance with this

chapter shall forever bar any further claim or

demand against the Untied States arising out of

the matter involved in the controversy.

STATEMENT OF THE CASE

Petitioners brought this class action

in the Federal District Court for Utah to recover

money damages based on their exclusion from a

share in the Southern Paiute Judgment Fund caused

by the failure of the Secretary of the Interior

to give adequate notice of the Fund's existence

and the procedure for claiming a share. The

statute most directly at issue is the Southern

Paiute Judgment Distribution Act (SPJDA), Pub.L.

90-584, 82 Stat. 1147 (1968), ante at pp. 2-3.

Jurisdiction was grounded on the Tucker Act, 28

U.S.C. 1346(a) (2).

On defendants’ motion, the District

Court dismissed based on lack of subject matter

jurisdiction, sovereign immunity, and failure to

state a claim. A. p. la infra. The Court of

Appeals determined that the Tucker Act authorizes

recovery if plaintiffs alleged a cause of action

against the United States for money damages. But

the Court held that plaintiffs had not alleged a

6

valid cause of action and affirmed the dis-

missal on this hasis. A. p. l4a infra.

The fund at issue arose from a 1965

judgment of the Indian Claims Commission in favor

of the Southern Paiute Nation of Indians for

$7,253,165.19. The claim had been filed with

the Commission in 1951. On April 30, 1965, Con-

gress appropriated the fund to satisfy the judg-

ment. Pub.L. 89-16, 79 Stat. 108. The fund was

thereafter administered by the Secretary of the

Interior until distributed in 1970. Plaintiffs

claim that the Secretary's obligation in handling

the fund was that of a trustee.

The crux of this dispute is the manner

in which the fund was distributed by the Secretary.

The Southern Paiute Nation, although the sole

named plaintiff before the Indian Claims Commission,

has never been a unitary political body. The

Southern Paiute people have always lived as small,

widely scattered and independent bands in the

desert regions of the southernGreat Basin. Their

original lands were seized by the United States

without treaty of cession or any compensation

over a period of about forty years in the late

nineteenth century. Subsequently small federal

reservations were set aside for some bands, some

individuals resided on the reservations of other

tribes, others received public domain allot-

ments, and many existedas squatters outside federal

7

Indian lands. Some of the federal reservations

were "terminated" in 1957. 25 U.S.C. 741-760.

Most of the Southern Paiute people have remained

in remote areas, knowing little English and having

few contacts with urban America.

This history is reflected in the terms

of the SPJDA itself. The Act (ante at pp. 2-3)

provided for distribution to three bands associated

with continuing federal reservations, to four bands

associated with "terminated" reservations, to

members of a State of Utah sponsored group at

Cedar City, Utah, and to all other Indians "who

can establish Southern Paiute lineal descent to

the satisfaction of the Secretary." Plaintiffs

are in the latter category as are the persons on

whose behalf they sued. They claim (and have

had no opportunity to prove) that the class they

represent constitutes the majority--possibly a

very large pntewbeget! +. of Southern Paiute Indians,

alomost all of whom were excluded from the distri-

bution by the Secretary's wrongful actions.

1/ A 1974 federal publication gave the combined

population of the three federal reservations as

393 and the population of the Cedar City group's

state reservation at 450. Federal and State Indian

Reservations and Indian Trust Areas (U.S. Dept. of

Commerce 1974). No figures for the terminated

bands were listed. Distribution in 1970 was ac-

tually made to 1,157 persons. The original com-

plaint in this action was filed by 1,337 named

plaintiffs in the excluded class. Plaintiffs now

believe that the class numbers at least 2,000 and

possibly 3,000 or more.

8

The seven named plaintiffs reside in

remote rural locations. Six are full blood Southern

Paiute Indians, one is part Southern Paiute. None

of them had notice of the existence of "their" claim

in the Indian Claims Commission, of the hiring of

"their" lawyers, of the settlement of "their" case,

or the enactment of the SPJDA. They first learned

of all of these events because of publicity about

the actual payments to the lucky few.

Plaintiffs also claim and are ready to

prove that the Interior Department knew that most

Southern Paiute Indians were not associated with

any organized band, lived in remote areas, and had

limited knowledge of English. Nevertheless the

Department communicated the existence of the judg-

ment and of the procedures to claim a share only

to selected persons. The governing bodies of the

reservation bands were notified, and newspaper

notice was published in such large cities as Las

Vegas, Phoenix, Sait Lake City, and Denver. No

effort whatsoever was made to notify most rural

Paiutes, even though the names and addresses of

many were known to the Department. The notice

effort clearly and deliberately favored city

dwellers and the few members of bands with reser-

vations. It favored assimilated people who read

English. As a result, more than half the persons

Congress designated to share in the fund did not

learn of its existence or of the method to claim

a share during the short, six month period allowed

for application. The Secretary's failure was the

more egregious, because as Congress specifically

recognized in the SPJDA some eligible persons were

minors or mental incompetents. SPJDA § 6.

REASONS FOR GRANTING THE WRIT

A. The Secretary's Actions Thwarted

the Intent of Congress

Section 1 of the SPJDA directed the

Secretary to "prepare a roll of all persons who

- « » Can establish Southern Paiute lineal descent."

The Secretary's delegates deliberately executed

the statute in a manner which omitted from any

chance of enrollment virtually all persons in the

quoted category, more than half the eligible

Indians. Most of these Indians lived in remote

rural areas and had no knowledge of the claims

case, the judgment, or the enrollment for distri-

bution.

The purpose of the claims judgment was

to do final justice for the wrongful taking of

tribal lands. The Indian Claims Act is “ntended

to be "a full discharge of the United States of

all claims and demands" based on land takings,

including actions tainted with "fraud, duress,

unconscionable consideration, . . . mistake"

and of all "claims based upon fair and honorable

10

dealings." 25 U.S.C. 70a, 70u(a). The claims

judgment purports to be a "final determination"

which "shall forever bar any further claim or

demand against the United States" arising out of

pre-1946 land takings. 25 U.S.C. 70u(b). The

Interior Department's execution of the SPJDA has

left it far short of Congress's purpose.

B. Plaintiffs Have a Cause of Action

for Damages.

| Defendant United States has not

seriously opposed the claim that the Interior

Department failed to carry out the purposes of

Congress. Rather, it has argued that the Sec-

retary's failings do not give rise to a monetary

claim against the Government, so the wrong is

without any remedy. This contention is not con-

sistent with applicable law.

The requirement for a monetary cause

of action against the United States is that the

laws "can fairly be interpreted as mandating

compensation by the Federal Government for the

damage sustained." United States v. Testan,

424 U.S. 392, 400 (1976), quoting Eastport S.S.

Corp. v. United States, 373 F.2d 1002, 1009

(Ct.Cl. 1967). This standard is clearly met here.

The congressional purpose in the Indian Claims

Commission Act, the 1965 appropriations act, and

the SPJDA was to pay money compensation to the

11

Southern Paiute people for the wrongful seizure

of their lands, and thus to bar any future

claims by them. More than half of the Southern

Paiute people were never informed of any of those

laws and learned of them only after enrollment

closed. Plaintiffs are persons whom Congress

directed be paid a share of the judgment fund.

Bureaucratic wrongdoing deprived them of any

chance to receive that which Congress directed.

In United States v. Testan, supra,

the Court held that the existence of an alterna-

tive remedy for statutory violations bears on

whether a claim for damages lies. 424 U.S. at

403-04. Unlike that case, plaintiffs here mani-

festly had no other remedy. Since the sole

purpose of the statutes was to pay them money

for taking their lands, no equitable remedy can

give them any relief. Once the fund had been

distributed without notice, there was nothing to

enjoin or declare.

C. Trust Principles Control.

Federal Indian statutes have long been

construed based on the premise that Congress

intends to deal fairly and honorably with depen-

dent Indian people. See, Squire v. Capoeman,

351 U.S. 1, 8-10 (1956). Doubts or ambiguities

are resolved in favor of the Indians. Bryan v.

12

Itasca County, 426 U.S. 373, 392 (1976). Statutes

are liberally construed to carry out their purposes

in a generous and just manner. Choate v. Trapp,

224 U.S. 665, 675 (1912).

Where Indian land and money are con-

cerned, the duties of government officials con-

trolling them have long been determined by the

standards of the common law of trusts. See, United

States v. Mason, 412 U.S. 391, 398-99 (1973); 25

U.S.C. 151-165; 31 U.S.C. 725s(a) (20); Note, Indian

Tribal Funds 27 Hast.L.J. 519 (1975). In Seminole

Nation v. United States, 316 U.S. 286, 296-97

(1942), the Court held the United States liable

as a fiduciary for payments intended for individual

Indians paid instead to corrupt tribal officials.

The Court said:

[TJhis Court has recognized the

distinctive obligation of trust

incumbent upon the Government in

its dealings with these dependent

and sometimes exploited people. .

Under a humane and self-imposed

policy which has found expression

in many acts of Congress and

numerous decisions of this Court,

it has charged itself with moral

obligations of the highest res-

ponsibility and trust. Its

13

conduct, as disclosed in the acts

of those who represent it in

dealings with the Indians should

therefore be judged by the most

exacting fiduciary standards.

When these settled rules of construction are applied

to the statutes and actions at issue here, it is

evident that plaintiffs cannot be left without a

remedy. Statutes intended to compensate plain-

tiffs monetarily cannot be emasculated by the

Secretary without any recourse.

CONCLUSION

The purpose of Congress to make fair

restitution for wrongful seizures of plaintiffs’

land has been violated by administrative lawless-

ness. The court below determined that the law

provides no remedy, a gross injustice which this

Court should correct. The writ of certiorari

should be granted.

Respectfully submitted,

Richard B. Collins

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

Telephone: 303/447-8760

Thomas E. Luebben

Richard W. Hughes

805 Tijeras, N.W.

Albuquerque, New Mexico 87102

December 1979 Counsel for Petitioners

14

APPENDIX

OPINIONS BELOW

Opinion of the District Court

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT

OF UTAH

CENTRAL DIVISION

CHLOE WHISKERS, et al.,

Plaintiffs,

ORDER GRANTING

Ne NS OY NY OS’ WY

vs. DEFENDANTS '

MOTION TO

THE UNITED STATES OF AMERICA,) DISMISS

ROGERS C. B. MORTON, )

individually and as Secretary)

of the Interior of the United) C-314-73

States; MARVIN FRANKLIN, )

individually and as Assistant)

to the Secretary of the )

Interior for Indian Affairs, )

Defendants. )

I. Historical Background

The genesis of the present action was

litigation instituted before the Indian Claims

Commission ("ICC") in January, 1951, to recover

just compensation for the Government's alleged

wrongful taking of land that originally belonged

to the Southern Paiute Nation of Indians. The ICC

heard testimony in the matter at intervals until

la

good faith efforts to enroll all eligible indiyi-

1965 when the Government stipulated to a settle- duals, the final roll listed 1,157 persons to whom

ment before the ICC of $7,253, 165.19 to be dis- the judgment fund was distributed, until exhausted,

tributed to the Southern Pauite Nation. To @ in per capita shares.

distribute this judgment, which Congress had pre-

viously appropriated (79 Stat. 81, 108, 109), II. Procedural Background to the Defendant's

Motion to Dismiss

The plaintiffs’ third amended complaint,

Congress enacted the Southern Pauite Judgment

Distribution Act, 82 Stat. 1147 (1968) ("SPJDA"). @

filed May 3, 1976, all the foll

Section 9 of the SPJDA authorizes the Secretary cae : able i hi aaa la

action: (1) breach of that statutory trust created

by the SPJDA, Public Law 90-584; (2) breach of

inherent trust obligations and fiduciary duties

of the Interior to promulgate regulations for the

enrollment of the participants and distribution

of the judgment fund. 24 C.F.R. §§ 41.3 (1)(1)- @

owed to the plaintiffs; (3 iolati f plaintiffs'

(4) (1976). Section 1 of the SPJDA required the r oe foe

Statutory rights t i 1

Secretary of the Interior to prepare a roll of . ee sree, Sone Senn Se tthe

an application to participate in the distribution

all eligible persons. Section 2 provided that:

of the judgment fund; (4 i ional

"Applications for enrollment must @ _— und; (4) an unconstitutiona

be filed with the Area Director, taking of private property for public use without

Bureau of Indian Affairs, Phoenix. ak cenaeatinns end (3) deoct

b . i -

Arizona, in the manner and within J P 5 (5) deprivation of property

the time limits prescribed by the without due process of law because of lack of

Secretary for that purpose. The timely notice of plaintiffs’ rights to enroll for

Secretary's determination on all _

applications for enrollment shall the distribution.

"

be final. The defendants moved to dismiss the

P ° ' oa :

To satisfy this directive, the Secretary's regula plaintiffe' third amended complaint on August 6,

tions required applications for aa to be ° 1976, on the following grounds:

filed in the appropriate regional office of the Cis the SPIDA, Contrary to the plaintiffs’

Bureau of Indian Affairs no later than June 30, third cause of action, did not create a substantive

‘ h ,

1969. 25 C.F.R. § 41.3 (1)(4) (1976) While the right for money damages that is enforceable

: : : ' .

parties raise factual issues of the Secretary s e against the United States under the Tucker Act,

28 U.S.C.A. § 1346(a) (2) (1976);

2a

(2) contrary to the plaintiffs fourth

and fifth causes of action, the plaintiffs have

no property right of which they have heen deprived

without just compensation or procedural due process;

(3) the plaintiffs' claim, if any,

sounds in tort rather than as an unconstitutional

"taking" of property without just compensation, and

should therefore be brought, if at all, pursuant

to the Federal Tort Claims Act;

(4) contrary to the plaintiffs’ first

and second causes of action, and even assuming

that the Government breached a trust obligation

to the plaintiffs in distributing the judgment

fund, Congress has not expressly waived sovereign

immunity for breach of trust under the present

circumstances; and

(5) the plaintiffs fail to state a

claim upon which relief can be granted.

On September 27, 1976, the plaintiffs

filed a memorandum in opposition to the defendants’

motion to dismiss on the following grounds: (1)

the Tucker Act confers jurisdiction on this court

for the defendants’ breach of the trust relation-

ship with the plaintiffs; and (2) the SPJDA creates

a substantive right for money damages against the

Government that is enforceable under the Tucker Act.

The defendants filed a reply memorandum

on November 17, 1976, to which the plaintiffs

4a

responded on January 12, 1977. The court is

fully advised of the facts and the law presented

by both parties on the defendants’ motion to

dismiss and is prepared to rule on the motion.

III. Issues Presented and Discussion

The issue before the court is whether

this court may exercise jurisdiction under the

Tucker Act, 28 U.S.C.A. § 1346(1)(2) (1976), over

these five causes of action. The Tucker Act grants

jurisdiction to this court ovér five types of

actions:

"The district courts shall have

original jurisdiction, concurrent

with the Court of Claims, of:

(2) Any other civil action or

claim against the United States,

not exceeding $10,000 in amount,

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 un-

liquidaged damages in cases not

sounding in tort."

The plaintiffs contend that the first and third

causes of action are founded upon an Act of Congress,

the SPJDA, and that the fourth and fifth causes

of action are founded upon the Constitution.

The second cause of action, as the plaintiffs

contend, is premised on a "judicially recognized"

5a

trust relationship for whose breach an action will

lie as an action "for liquidated or unliquidated

damages in cases not sounding in tort" under the

Tucker Act.

Whether the first and third causes of

action are cognizable under the Tucker Act depends

upon the extent to which the SPJDA creates "a sub-

Stantive right to recover money damages from the

United States." United States v. Testan, 424 U.S.

392, 398 (1976). Since the Tucker Act is juris-

dictional, the plaintiffs must demonstrate that the

SPJDA expressly waives sovereign immunity, see

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

in that the SPJDA "can fairly be interpreted as

mandating compensation by the Federal Government

for the damage sustained." Eastport Steamship

Corp. v. United States, 372 F.2d 1002, 1009 (Ct.

Cl. 1967), cited with approval, United States v.

Testan, supra at 400.

To sustain the burden that the SPJDA

created a substantive right to recover money

damages against the United States, the plaintiffs

must prove that (1) a trust relationship is, in

fact, created by that legislation, and (2) having

found a trust relationship, the SPJDA mandates

that the Government compensate plaintiffs for a

breach of that trust. The plaintiffs argue that

the SPJDA creates a trust relationship between the

6a

United States and the plaintiffs merely because

the judgment fund is held in the United States

Treasury prior to distribution. The United States

allegedly acts as a trustee of the judgment fund

and must exercise the fiduciary obligations inherent

in that position. The statutory language does not

support the plaintiffs’ contention. The SPJDA does

not purport to create a trust relationship between

the Government and the Indians, as the Congress

has expressly done in other legislation. See, e.g.,

United States v. Mason, 412 U.S. 391, 393 (1973);

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

289 (1942); Pyramid Lake Paiute Tribe of Indians

v. Morton, 354 F.Supp. 252, 256 & n.4 (D.D.C. 1972).

The Act provides in Section 6 that the Secretary

May protect the interests of enrollees under 21

years of age through such devices as will "best

protect their interests," including the "establish-

' Section 7 specifically disavows

ment of trusts.’

any congressional intent to impose trust or fiduciary

obligations on the Secretary of the Interior when

the Secretary allows adult enrollees to invest their

portion of the fund. The court's finding recog-

nizes that certain funds can be, and have been, held

in trust for distribution to the tribe or to

individual Indians, but the SPJDA does not create

such a distribution scheme.

7a

Failing to prove that a trust relation-

ship was created, the court need not consider

whether the SPJDA created a substantive right for

money damages against the United States, although

the court doubts that the statutory language would

Support that conclusion even if a trust were found

to exist. As the defendants argue, and as the

United States Supreme Court agrees, "there cannot

be a right to money damages without a waiver of

sovereign immunity, and we regard as unsound the

argument of amici that all substantive rights of

necessity create a waiver of sovereign immunity

such that money damages are available to redress

their violation." United States v. Testan, supra

at 400-01.

To succeed on the fourth and fifth causes

of action, the plaintiffs must prove that they

enjoyed a property right in the judgment fund cog-

nizable under the Fifth Amendment. If plaintiffs

have such a property right, they cannot be deprived

of that right without just compensation or without

procedural due process under the Fifth Amendment.

While the plaintiffs may have possessed an expec-

tancy to participate in the distribution of that

fund, the issue before the court is whether the

property right had vested in the plaintiffs so that

they were entitled to the protections of the Fifth

Amendment. Prior to a property right vesting in

8a

the individual, Congress has "broad authority" to

alter the distribution scheme and manage the funds

allocated to the tribe. Delaware Tribal Business

Committee v. Weeks, 45 U.S.L.W. 4202, 4205 (U.S.

Feb. 23, 1977). In light of that broad authority,

Congress did not unconstitutionally deprive the

original class of intended beneficiaries of pro-

perty without just compensation by expanding the

class of tribal beneficiaries entitled to share

in royalties from tribal lands. United States v.

Jim 409 U.S. 80, 82-83 (1972). See also Gritts

v. Fisher, 224 U.S. 640, 647-48 (1912). Nor did

Congress violate the Fifth Amendment by devoting

mineral rights to tribal use that would otherwise

have gone to individual allottees at a future date.

Northern Cheyenne Tribe v. Hollowbreast, 425 U.S.

649, 654-56 (1976).

In the present case, Congress authorized

the Secretary of the Intericr to promulgate regu-

lations to govern the manrer aud the time limits

for participation in the distribution of the judg-

ment fund and declared that "[t]he Secretary's

determination on all applications for enrollment

shall be final." Prior to final earelinent, the

expected participants in the distribution had no

vested rights. See, e.¢g., Klamath & Modoc Tribes

v. United States, 436 F.2d 1008, 1021 (Ct.Cl.),

cert. denied, 404 U.S. 950 (1971) ("Even in the

9a

absence of such a statutory provision, the rule is

well settled that no individual vested rights are

normally created in Indians until promulgation

of the final roll."); Choctaw Nation v. United

States, 100 F.Supp. 318, 320 (Ct.Cl.) cert. denied,

343 U.S. 955 (1951) ("The cases clearly establish

the rule that before the closing of the citizen-

ship rolls, no property of any kind has vested

in the members of the tribe as individuals but

was still in the tribe. ...").

Even after promulgation of the final roll,

Congress may add a group of individuals who, for

whatever reason, were not initially enrolled to

carry out congressional intent to make a complete

and accurate enrollment. See Choctaw Nation v.

United States, supra at 324-25. This remedy must

proceed from Congress, which it could do to remedy

the present circumstances, and not from the Secretary

of the Interior, so long as the Secretary has com-

plied in good faith with the implementation of the

congressional distribution scheme as originally

authorized. As stated in Choctaw Nation v. United

States, supra at 325:

"The power of revision and correction

which was in the Secretary of the

Interior until March 4, 1907 .

ended with the closing of the rolls

on that date. The power of changing

the requirements for membership

and enrollment which was in Congress

pursuant to the Atcka Agreement,

10a

came to an end also on March 4, 1907,

But the obligation of Congress to

place upon the tribal roll those

members of the tribe who were

entitled to be thereon under the

Standards as they existed in 1907,

did not end with the closing of

the roll in 1907. Congress was

as much obligated to the forty-

one members of the tribe who met

those standards as it was to the

Choctaws who were on the rolls in

1907, and we think it had the

power to correct the error or

ommission by placing the forty-one

persons on the rolls in 1914."

The plaintiffs were required to comply

with the enrollment procedure as congressionally

authorized and as implemented by the Secretary of

the Interior in his regulations. The plaintiffs,

having failed to enroll within the time limits set

by the Secretary, have no vested property right of

which they can be deprived without just compen-

sation or without procedural due process under

the Fifth Amendment. Congress can require com-

pliance with its distribution scheme. Failure to

comply with the regulations governing enrollment,

which. were promulgated under Congress's broad

authority to manage and distribute the judgment

funds, jusitfies exclusion from participation in

the distribution without violating the Fifth

Amendment. Cf. Delaware Tribal Business Committee

v. Weeks, supra. The plaintiffs’ fourth and fifth

lla

causes of action, not being founded on the Con-

stitution, must be dismissed for lack of juris-

diction under the Tucker Act.

The plaintiffs' second cause of action

is premised upon a breach of trust and of fiduciary

obligations, which purportedly arise through the

relationship of the Federal Government to the

Indian tribe when a judgment fund is held in the

United States Treasury. This cause of action

for breach of trust allegedly exists independently

of any statutory trust that may have been estab-

lished by the SPJDA. As this court stated in its

order filed December 27, 1974, the relevant juris-

dictional inquiry under the Tucker Act is whether

that Act comprehends jurisdiction for a breach

of trust. The plaintiffs have argued that breach

of that trust relationship existing between the

Government and the plaintiffs confers jurisdiction

on this court, but the cases on which they base .

their argument derive jurisdiction from special

jurisdictional statutes passed by Congress to

remedy specific injustices. See, e.g., Seminole

Nation v. United States, 316 U.S. 286, 289 & n.2

(1942); Navajo Tribe of Indians v. United States,

364 F.2d 320, 322 & n.1 (Ct.Cl. 1966). The plain-

tiffs cite other cases for breach of trust on

which the jurisdiction is not explicit and on which

the parties disagree as to whether jurisdiction

12a

was exercised pursuant to aspecial jurisdictional

act or the Tucker Act. See United States v. Mason,

412 U.S. 391 (1973); Cheyenne-Arapahoe Tribes of

Indians v. United States, 512 F.2d 1390 (Ct.Cl.

1975). In the court's order of December 27, 1974,

Manchester Band of Pomo Indians, Inc. v. United

States, 363 F.Supp. 1238, 1242 (N.D. Cal. 1973),

was the only case of precedential value to the

jurisdictional issue of a breach of trust under

the Tucker Act.

Courts must find express waiver of

sovereign immunity before assuming jurisdiction

Over a damage claim against the Government. See,

e.g., United States v. Testan, supra at 399-400;

Affiliated Ute Citizens v. United States, 406 U.S.

128, 141-42 (1972); Harkins v. United States, 375

F.2d 239, 242 (10th Cir. 1967). As the Court

stated in United States v. Sherwood, supra:

"The United States, as sovereign,

is immune from suit save as it

consents to be sued... and

the terms of its consent to be

sued in any court define that

court's jurisdiction to enter- ,

tain the suit."

Id.at 586. This court has, therefore, determined

that a breach of trust does not fall within this

court's jurisdiction under the Tucker Act. Where-

fore, the court having no jurisdiction over any

of the plaintiffs’ five causes of action,

13a

IT IS HEREBY ORDERED that the defendants'

motion to dismiss is granted.

DATED this 21 day of March, 1977.

/s/ ALDON J. ANDERSON

United States District Judge

Opinion of the Court of Appeals

600 F.2d 1332 (10th Cir. 1979)

Chloe WHISKERS, Annie Cantsee, Velma

Mills, James Mills, Marshall Whyte,

Raymond Steward Hatch and Anna

Marie Nat, Plaintiffs-Appellants,

Vv.

UNITED STATES of America, Cecil

Andrus, Secretary of the Interior,

and Forrest Gerard, Assistant

Secretary of the Interior for

Indian Affairs, Defendants-Appellees.

Quinault Allottees Association,

Amicus Curiae,

No. 77-1620.

United States Court of Appeals,

Tenth Circuit.

Argued Sept. 29, 1978.

Decided June 14, 1979.

Rehearing Denied Aug. 14, 1979.

Before McWILLIAMS, McKAY and LOGAN,

Circuit Judges.

McKAY, Circuit Judge.

l4a

This litigation arises out of a settle-

ment between the United States and the Southern

Paiute Nation to compensate the latter for the

taking of aboriginal homelands in southern Utah

and northern Axisona:” In 1965 Congress appropriated

more than seven million dollars to pay the settle-

ment sum. Second Supplemental Appropriations Act,

Pub.L. No. 89-16, tit. IV, 79 Stat. 108 (1965)

(the Appropriation het). The Southern Paiute

Judgment Distribution Act. Pub.L. No. 90-584, 82

Stat. 1147 (1968) (the Distribution Act) was

enacted three years later to provide for distri-

bution of the judgment fund.

The Distribution Act directed the Secre-

tary of che Interior (the Secretary ) to prepare

a roll of all persons who met the requirements of

membership in six specified groups or categories

of Southern Paiutes. Applications for inclusion

1. The settlement was stipulated to hefore the

Indian Claims Commission.

2. Title IV of Pub.L. No. 89-16 appropriated

money "[fJor payment of claims . .. as set forth

in Senate Document Numbered 19, Eighty-ninth Congress

and House Document Numbered 113, Eighty-ninth

Congress.'' The House Document referred to seven

Indian Claims Commission awards, including the in-

stant one in favor of "The Southern Paiute Nation

et al.'"' H.R. Doc. No. 113, 89th Cong., lst Sess.

i5 (1965).

l5a

on the roll were required to he filed in the manner (4) taking of property without just

and within the time limits prescribed by the Secre-

tary, whose determination on all applications was Amendment; and

compensation, in violation of the Fifth

to be final. After deducting expenses, the Secre- (5) deprivation of property without due

tary was directed to apportion the remainder of process of law.

the fund among the six groups of persons entitled Plaintiffs asserted that the district

to enrollment. court had jurisdiction over these claims by virtue

Regulations promulgated by the Secretary of a provision of the Tucker Act, 28 U.S.C. § 1346

pursuant to the Distribution Act repeat the eligi- (a) (1976), which provides:

bility requirements outlined in the act and further (a) The district courts shall have original

require that applications for enrollment be post-

marked by June 30, 1969. 25 C.F.R. § 41.3(1) (1)-

(4) (1978).

Plaintiffs brought this suit for damages

in federal district court contending that the United

States made inadequate attempts to enroll eligible

persons residing in remote areas, which caused

plaintiffs and the class they represent to fail to

receive their rightful shares of the settlement.

Plaintiffs' district court complaint, as amended,

denominated five causes of action:

(1) breach of a trust created by the

Distribution Act and regulations pro-

jurisdiction, concurrent with the Court

of Claims, of:

(2) Any . . . civil action or claim

against the United States, not exceeding

$10,000 in amount, 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.

The district court concluded that its

mulgated thereunder; Tucker Act jurisdiction did not extend to any of

(2) breach of a trust created by general the claims alleged in plaintiffs' complaint. The

federal Indian statutes, regulations court was of the view that the Distribution Act did

and judicial decisions; not establish a trust or create other substantive

(3) breach of statutory duties established rights in the plaintiffs that were enforceable

by the Distribution Act;

l6a @ 17a

under the Tucker Act, and accordingly dis-

missed the first and third causes of action. The

second cause of action was dismissed on the ground

that an action for breach of trust was heyond the

district court's Tucker Act jurisdiction. The

court further concluded that plaintiffs did not

enjoy a property right in the judgment fund cog-

nizable under the Fifth Amendment and therefore

dismissed the fourth and fifth causes of action.

Whether dismissal of plaintiffs' complaint as to

each of these claims was proper is the only issue

on appeal.

I.

We begin our review of the trial court's

disposition by noting that through the Tucker Act

the United States has consented to be sued in the

district courts and the Court of Claims for money

damages arising out of certain specified circum

stances. 28 U.S.C. §§ 1346(a)(2), 1491 (1976).

See United States v. Sherwood, 312 U.S. 584, 590,

61 S.Ct. 767, 85 L.Ed. 1058 (1941); International

Engineering Co. v. Richardson, 167 U.S.App.D.C.

396, 512 F.2d 573, 577 (1975), cert. denied, 423

U.S. 1048, 96 S.Ct. 774, 46 L.Ed. 2d 636 (1976);

Pasha v. United States, 484 F.2d 630, 633 (7th

Cir. 1973); Konecny v. United States, 388 F.2d

59, 62 (8th Cir. 1967). However, the act itself

does not provide any substantive rights enforceable

18a

against the United States in a suit for damages; it

merely confers jurisdiction wheneyer such a substan-

tive right falling within the categories enumerated

in the Tucker Act otherwise exists, United States

v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d

114 (1976). It is not enough that a complaint contain

allegations comporting with Tucker Act claim cate-

gories. The Supreme Court in Testan made it clear

that before a court may hear a Tucker Act claim

against the United States, it must first determine

that some "federal statute” tan fairly be interpreted

as mandating compensation by the Federal Government

for the damage sustained.'" 424 U.S. at 400, 96 S.Ct.

at 954 (quoting Eastport Steamship Corp. v. United

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

Since plaintiffs’ claims are premised on

the Constitution, federal statutes, and executive

regulations, they are within the specific categories

enumerated in the Tucker Act. Inasmuch as the Dis-

bution Act gave plaintiffs the right to share in the

judgment provesds,” the controlling question is

3. For purposes of this determination, an "author-

ized regulation" is the equivalent of a statute.

See United States v. Hopkins, 427 U.S. 123, 128, ©

96 S.Ct. 2508, 49 L.Ed.2d 361 (1976) (per curiam).

4. Plaintiffs all claim to be within the sixth

category of Southern Paiutes listed in the Distri-

bution Act. This category consists of "Indians

living [other than in previously mentioned

areas] who can establish Southern Paiute lineal

descent to the satisfaction of the Secretary of

the Interior." Pub.L. No. 90-584, § 1l(g)., 82- ~

Stat. 1147. :

19a

whether federal law mandates compensation for

damages plaintiffs may have sustained hecause of

the Secretary's actions in derogation of their

rights.

ik.

Our analysis of the question focuses

first on the breach of trust claims. At the out-

set we express our full agreement with plaintiffs'

contention that a legislative declaration of trust

status for a particular fund is itself a congressional

mandate, fully consistent with the Testan-Eastport

standard discussed above, that the United States

assume financial responsibility for its failure

adequately to perform its fiduciary dhlisetions.”

Liability on the part of a trustee for breach of

his fiduciary duties is inherent in a trust relation-

ship. Unless it appeared affirmatively that Congress

meant to create something less than a {rust relation-

ship when it used the term "trust" in referring to

a particular fund, we would necessarily assume that

ot

5. We do not believe Testan requires that Congress

expressly state that damages are recoverable before

jurisdiction under the Tucker Act will lie. See

Mitchell v. United States, 591 F.2d 1300, 1302

(Ct.Cl. 1979). The Eastport decision noted that

the right to monetary recovery could be granted

"expressly or by implication." 178 Ct.Cl. 599, 372

F.2d at 1007.

20a

Congress intended to establish nothing less than

a valid trust -- complete with fiduciary duties

and concimotant financial liability for their

breach. That congressional creation of a trust

relationship itself mandates compensation for

damages sustained from breach of that trust has

recently been recognized by the Court of Claims

in a decision involving amicus Quinault Allottees

Association. See Mitchell v. United States, 591

F.2d 1300, 1302 (Ct.Cl. 1979). °

While we accept plaintiffs' basic juris-

dictional premise, we cannot agree that Congress

in any way indicated that the judgment fund in

question was to be held in trust pending distri-

bution or that the Secretary was to act as a

trustee in distributing the fund.

The Appropriation Act did not indicate

that the fund would be held in trust pending

6. The conclusion that the Tucker Act provides a

jurisdictional basis for claims alleging breach of

a congressionally created trust is by no means

novel. In United States v. Mason, 412 U.S. 391,

93 S.Ct. 2202, 37 L.Ed.2d 22 (1973), the Supreme

Court reversed a Court of Claims determination that

the United States, acting as trustee, had breached

its fiduciary responsibilities with respect to

Indian property. The Court did not, however,

question the Court of Claims" conclusion that the

Tucker Act was a proper jurisdictional basis for

bringing such a claim. See 412 U.S. at 394 n. 5,

93 S.Ct. 2a02.

2la

distribution. See Pub.L. No. 89-16, tit. IV,

79 Stat. 108. Neither did the Distribution Act.’

See Pub.L. No. 90-584, 82 Stat. 1147. Plaintiffs

refer to several statutes concerning trusts, but

none has applicability to the fund in question.

E.g., -25 U.S.C. § 160 (1976) (concerning stocks,

bonds, and other securities held by the Secretary

for certain Indians on June 10, 1876); 25 U.S.C.

§ 161 (1976) (Secretary authorized to deposit into

the Treasury certain funds held by him as trustee

on April 1, 1880); 31 U.S.C. § 547a (1976) (invest-

ment procedure for trust funds).

Plaintiffs place substantial reliance on

31 U.S.C. § 725s(a) (20) (1976) ,° contending it

declares that the judgment fund, while held in the

Treasury pending distribution, was held in trust.

At first blush, the section does appear to have the

7. The only express mention in the Distribution

Act of a trust relationship is in section 6. That

section merely authorizes the Secretary to establish

trusts in favor of jndividual enrollees under

certain circumstances:

Sums payable to enrollees or their heirs

legatees who are less than twenty-one years

of age or who are under a legal disability

shall be paid in accordance with such

procedures as the Secretary determines will

best protect their interests, including

the establishment of trusts. _

8. This provision was enacted by the Permanent

Appropriation Repeal Act of 1934, Pub.L. No. 73-

‘473, § 20 Stat. 1233.

22a

effect plaintiffs attribute to it. Although the

government inexplicably makes no attempt to refute

the claimed significance of the section, our in-

dependent research leads us to conclude that the

section does not have the sweeping meaning that a

simple reading of it might indicate.

Section 725s provides:

(a) The funds appearing on the books

of the Government and listed in sub-

sections (b) and (c) of this section

shall be classified on the books of

the Treasury as trust funds...

(20) Indian moneys, proceeds of labor,

agencies, schools, and so forth (5t301).

The key to understanding the scope of subsection

20 is found in the rather cryptic parenthetical

notation "(5t301)."" This notation refers to the

particular Treasury account to which the specified

funds were credited. 78 Cong.Rec. 8242 (1934)

(remarks of Rep. Griffin). The funds so credited

were described as follows:

This fund covers deposits in the Trea-

sury of the United States of proceeds

of pasturage and sales of timber, coal

or other products and miscellaneous

revenues of any Indian reservation,

except those of the Five Civilized

23a

Tribes, and not the result of the

labor of any one member of a tribe.

Hearing on H.R. 9410 Before the Subcomm. on Per-

manent Appropriations of the House Appropriations

Comm., 73d Cong., 2d Sess., 255 (1934). The Chief

Finance Officer of the Indian Service further

explained:

In the negotiation of the treaties with

the several tribes of Indians, tracts of

land were set aside for agencies, schools,

and administrative purposes. Frequently

the Indians were compensated in some way

for the land so held. The title to the

land is vested in the United States.

There were set aside anywhere from 160

to 640 acres of land, all of which is not

needed. Some of that land may be leased

for grazing purposes, the agency may

operate a farm on it, or the land may be

put to some other use. The revenue

derived from that land comes in, not

to the credit of the tribe, but is taken

up in the account as "Indian Moneys,

Proceeds of Labor," and is available

for expenditure by the several schools

or agencies.

Id. at 258 (testimony of Mr. Dodd).

24a

It is clear that this provision dealt

only with a narrow range of "Indian moneys," and

not with all funds that might be so described.

It is equally clear that funds appropriated in

settlement of claims brought before the Indian

Claims Commission are not within that narrow

range. It follows that this section provides

no basis for concluding that the judgment pro-

ceeds were held in trust at the time they were

distributed by the Secretary.

Plaintiffs advance the further argument

that an analysis of the existing body of law and

regulations applicable to Indians, taken as a

whole, supports the conclusion that the relation-

ship of the United States to its Indian citizens

is in the nature of a trust. This point is not

without some appeal and, indeed, it is entirely

accurate as a general proposition. But this

characterization simply does not satisfy the

Testan-Eastport requirement of a specific con-

gressional mandate to compensate those injured

by the violation of some substantive right.

For the reasons outlined in this opinion,

we agree that plaintiffs’ breach of trust claims

were properly diemiseea.” In so deciding, we are

9. The parties devote some attention to 28 U.S.C.

§ 1346(a)'s grant of jurisdiction over claims

against the United States "for liquidated or

unliquidated damages in cases not sounding in

tort."’ Even assuming an action for breach of

25a

not unmindful of language in Cheyenne-Arapaho

Tribes v. United States, 512 F.2d 1390, 1392

(Ct.Cl. 1975), "that funds appropriated to Indians

to satisfy judgments of the Indian Claims Commis—

sion or of [the Court of Claims], as well as funds

produced by tribal activities, are, when kept in

the Treasury, held in trust for the Indians."

The Cheyenne-Arapaho case involved several types

of trust funds, including two held by the Southern

Ute Tribe which were derived from an Indian Claims

Commission award. That case is readily distinguish-

able from this one, however, in that specific

congressional legislation declared the funds

9 cont'd. trust fits within this category of claim --

which it certainly seems to do -- appellants must still

demonstrate the existence of the requisite con-

gressional intention that monetary compensation

be available for violation of a substantive right.

We have stated that congressional establishment

of a trust itself satisfies this requirement for

claims based on breach of that trust. No such

establishment of a trust las been demonstrated

by plaintiffs in this case.

This problem may be of no more than

theoretical interest in any event. Any congress-

ional creation of a trust would be accomplished

directly, by statute, or indirectly, by authorized

regulation. An action for breach of that trust

would therefore readily fit within the "Act of

Congress" and "regulation of an executive depart-

ment" prongs of the Tucker Act, making resort to

the more amorphous "cases not sounding in tort"

category unnecessary.

26a

in Cheyenne-Arapaho to be held in truat.*" In

any event, insofar as the cited language in

Cheyenne-Arapaho would lead us to a conclusion

incompatible with the standards announced in

Testan, we are unable to follow it.

Plaintiffs have also drawn our atten-

tion to two cases decided by the Court of Claims

10. 25 U.S.C. § 672, enacted in 1951, divided

certain trust funds, giving a portion to the

Southern Utes. That statute directed that this

portion be credited to the Southern Utes' "existing"

trust account established pursuant to other provi-

sions of Title 25. When Congress ordered distri-

bution of the Indian Claims Commission award

forming the trust res at issue in Cheyenne-Arapahoe,

it simply directed that the judgment share attribu-

table to the Southern Utes be "available for use

in accordance with existing authorization," including

$672. 25 U.S.C. § 676a (1976). Moreover, Congress

expressly referred to the Southern Utes' judgment

award as constituting a trust find. Id. Thus

there was present in the Cheyenne-Arapahoe case

precisely what is missing in this case -- a

specific congressionally created trust relation-

Ship from which a congressional mandate for com-

pensatory damages for breach of trust can be

fairly implied.

We recognize that § 676a refers to " the trust

fund . . . appropriated by the Second Supplemental

Appropriations Act, 1965." This act, of course,

also appropriated the sum to pay the Southern Paiute

award involved inthe instant case. The fact that

the Appropriation Act does not itself refer to

trust funds being appropriated and the absence in

the Southern Paiute Distribution Act of any reference

to a pre-distribution trust relationship none-

theless compel the conclusion that the quoted

phrase in § 676a refers only to the Ute award dealt

27a

subsequent to its decision in Mitchel. 7? Both

decisions, Duncan vy. United States, 597 F.2d 1337

(Ct.Cl. 1979), and Cherry v. United States, 594

F.2d 795 (Ct.Cl. 1979), concluded that Tucker Act

jurisdiction existed for breach of trust claims

presented by plaintiffs in those cases.

In Cherry, the court reasoned that a stat-

ute and related regulations "envision[ed]" a trust

relationship between the Air Force and missing Air

Force personnel insofar as management of compensa-

tion accuring to servicemen missing in action was

concerned. 594 F.2d at 799. This result was

reached despite the absence of the word "trustee"

in the provisions relied on. We agree that use

of the word "trustee" is not absolutely essential

to finding of a trust relationship when it

10 cont'd. with by that section, and not to the

Southern Paiute award. Our comprehensive review

of the legislative history of 676a indicates

there is no basis for concluding that Congress

meant to express its intention that all sums

appropriated by the Appropriations Act, including

those in no way expressly affected by 676a, were

to be held as trust funds. In this regard, a com-

parison of 676a with the Distribution Act is

insightful: While 676a, dealing with Southern

Utes, refers to "the trust fund . . . appropriated

by the Second Supplemental Appropriations Act,”

1 of the Distribution Act, dealing with Southern

Paiutes, refers to "the sum. . . appropriated [by

that same appropriation act]." (Emphasis added.)

11. See text accompanying note 6 supra.

28a

is otherwise clear that Congress intended a trust

relationship to exist." But even if the Court of

Claims was correct in discerning a trust relation-

ship in the provisions considered in Cherry, we

are unable to reach a similar conclusion in the

case before us. We simply do not find in the

relevant statutory and regulatory provisions an

enumeration of duties which would justify a con-

clusion that Congress intended the Secretary to

be a trustee in carrying out the provisions of

the Distribution mo

In Duncan, the court cited Cherry for

the proposition that "Congress need not expressly

12. By the same token, as noted earlier in this

opinion, mere use of the term "trust" would not

necessarily justify a conclusion that an actual

trust relationship had been intended by Congress.

See text following note 5 supra.

13. It should be noted that a panel member

dissented in Cherry, stating that a trust "cannot

be implied from authorities relied upon by the

court." 594 F.2d at 802. The dissent focused on

the jurisdictional standards announced in Testan

and Eastport (decisions curiously overlooked by

the Cherry majority) and criticized the majority's

use of Mitchell:

The court has not pointed to any passage

in the Missing Persons Act which creates

"expressly or by implication" the statutory

authorization for a trust which it required

in Mitchell as the "substantive right"

which mandates compensation. It is very

important to note in this connection that

in Mitchell the holding that the statute

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use a talismani® phrase such as 'trust relation-

ship’ or ‘hold in trust’ in order to establish a

trust relationship." 597 F.2d at 1342. However,

the case was like Mitchell -- and unlike Cherry —-

in that it involved a statutory provision which

explicitly recognized the existence of a trust

relationship. See id. at 1343.

Whether or not these cases are at

variance with Testan is not clear. Insofar as

they are, we of course cannot follow them. Insofar

as they are not, they do not require a conclusion

different from the one we have reached here.

ait.

Plaintiffs’ third cause of action was

properly dismissed. This cause of action was

based on alleged breach of statutory duties es-

tablished by the Distribution ACt, independent

of any trust relationship. The requisite mandate

of federal compensation for damages sustained is

not to be found in these provisions. See United

States v. Testan, 424 U.S. at 400, 96 S.Ct. 948.

13 cont'd. authorized suit for monetary recovery

was based on an implication which derived

from the statute's express declaration of

a trust. It is the absence of the

latter which here deprives the court of

the analogy it seeks to establish.

Id. at Gs.

30a

IV.

Plafntiffs' constitutional claims in

counts 4 and 5 were also properly dismissed. We

agree with the trial court's conclusion that

plaintiffs had no constitutionally cognizable

individual property rights in the undistributed

fund of which they could have been deprived in

violation of the Fifth Amendment. The legislative

scheme for settlement of Indian Claims Commission

was designed to provide relief for group claims

as opposed to individual claims. See Turtle Mountain

Band of Chippewa Indians v. United States, 203 Ct.Cl.

426, 490 F.2d 935, 951 (1974). We see no basis for

concluding that the individuals in this case had

somehow come to enjoy the individual property

interests in the judgment award at the time of

distribution. The Distribution Act establishes no

basis for such a conclusion. ““ It provides that

the fund be distributed "among the groups of persons

entitled to enrollwent on the Southern Paiute

Indian roll." Pub.L. No. 90-584, § 3, 82 Stat.

1147 (emphasis added). Further indication that

individual property interests were not intended on

14. It is true that some other statute or regula-

tion could serve to indicate the existence and

extent of individual property interests in the

judgment fund. However, we are unable to discover

other provisions which so indicate.

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behalf of all persons coming within the categories

in the Distribution Act is seen in section 4 of

the act. It provides that the judgment award

shares payable to two groups of Southern Pauites,

the Kaibab Band and the Moapa Band, be "redeposited

in the Treasury of the United States to the credit

of the respective bands," for use "in any manner

authorized by the governing hody [of each band]

and approved by the Secretary." Id. § 4 (emphasis

added). Although the distributional section

' applicable to plaintiffs directed distribution

to individuals, the right to such an individual

payment, and thus a specific property right in the

judgment award, was predicated upon enrollment by

the Secretary. See id. § 5. Plaintiffs were

not so enrolled.

Given the variety and complexity of

acts and regulations providing for distribution of

judgment awards and other funds among Indians, we

intentionally avoid making sweeping statements

concerning the existence or scope of constitutionally

significant property interests in these funds gen-

erally. We simply hold that these particular plain-

tiffs did not, as a matter of law, have such property

interests in this particular judgment fund.

32a

Order Denying Rehearing

July Term - August 14, 1979

(caption omitted - same as above)

~

This matter comes on for consideration

of appellants' petition for rehearing filed July

16, 1979, in the captioned cause.

Upon consideration whereof, it is

ordered that the petition for rehearing is

denied.

/s/ Howard K. Phillips

Clerk ~

33a