# Petition — Whiskers v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1078

## Text

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

29a

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.

3la

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1385%3A1. Public record. Not legal advice.