Petition — Menominee Tribe of Indians v. United States

Supreme Court brief1980

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Gupreme Court, U.S.” 1

FILED

JAN 15 1980

AEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

SE EEE

no. '%9-1108

THE MENOMINEE TRIBE OF INDIANS, et al.,

Petitioners,

THE UNITED STATES OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

ANGELO A. IADAROLA

1735 New York Avenue, N.W.

Of Counsel: Washington, D.C. 20006

(202) 833-9800

WILKINSON, CRAGUN Attorney for Petitioners

& BARKER

Puitirp A. NACKE

JACQUELYN R,. LUKE

———— SN NaNNNNNSSINNNNNNNNNNSSNS

Weshington, O.C. + THIEL PRESS + (202) 638-4521

| (i)

TABLE OF CONTENTS ans

CE RA hs TRU ed cee docs eevee sees 2

JURISDICTION 2.20 cece creer rere cvscevens 2

QUESTION PRESENTED ......... cece ecsesveces 2

ASTRMNTIE VOLVED 000 oc es cece ene 3

STATEMENT OF CASE

rae ee ae ee ee a ee ee 3

The Proceedings in This Case... 0s ccsc ccc ccccvcce 6

REASONS FOR GRANTING THE WRIT:

I. The Issue in This Case Is One of Significant Import

Under the Constitution, Laws and Treaties of the

ES a te ee Ge ea a ee a 11

Il. This Decision Conflicts with Prior Decisions of

: Both This Court and the Court of Claims........... 14

Ill. The Writ Should Issue in Light of This Court’s Duty

To Exercise Supervision Over the Lower Federal

er are aa ee ee 19

fo ENE ae a a ee ie ae oe 20

| APPENDICES:

| A. Opinion of the Court of Claims .........-.++++++: la

B. Opinion of the Trial Judge ..........---+e000 20a

C. Section 24 of Indian Claims Commission Act...... 125a

SS ee een ee oe Oe eee eo 126a

E. Menominee Termination Act. ....-.-.++e+ee085 128a

F. Treaty of Wolf River of May 12,1854 .......... 136a

G. Memorandum to Commissioner of Indian Affairs

from the Department of the Interior —Office of

: Che BOMCHOF. 2 ee ct we reser rere ccces 14la

TABLE OF AUTHORITIES

Cases:

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

a SE rae ot a ea ae a ee ee 22

(it)

Cases, continued: Page

Alcea Band of Tillamooks v. United States, 329 U.S. 40

| ee ewer re tt ae se a ee 16, 20

Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902)....... 16

Confederated Salish and Kootenai Tribes v. United States,

167 Ct. Cl. 405 (1964) & 175 Ct. Cl. 451, cert. denied,

BEG Ui PER AOOl ohn cccew eae seco ewe 15, 18, 19

Choate v. Trapp, 224 U.S. 665 (1912) .... eee eee wees 16

Choctaw Nation v. Atchison, Topeka & Santa Fe RR,

$96 F.2d 578 (10th Cir. 1968) ...... cee vevvvcceee 18

Creek Nation v. United States, 24 Ind. Cl. Comm. 238

(1970), aff’d 216 Ct. Cl. ___, 578 F.2d 1389, cert.

daonsnd, 499 U.B B08 (1O7B) i. vce ec c ccc neevves 19

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

HOC ag MRP NSC BIOS Mite TE BRS es eg Cd nae aa 17, 18,19

Fort Peck Indians of the Fort Peck Reservation v. United

States, 34 Ind. Cl. Comm, 24 (1974), rev’d and

remanded in part on other grounds, 207 Ct. Cl, 1045

TOFD) cick kwh Rae ne ev bO hee ened viveee vs 19

Klamath and Modoc Tribes v. United States, 193 Ct, Cl.

670, 436 F.2d 1008, cert. denied sub nom. Anderson

v. United States, 404 U.S.950(1971) ....- eee wens 19

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) ........ 16, 18

Menominee Tribe v. United States, 179 Ct. Cl. 496, 388

F.2d 998 (1967), aff'd, 391 U.S. 404 (1968) ...... 14,18

Menominee Tribe v. United States, 391 U.S. 404 (1968)... 3

Mitchell v. United States, 219 Ct. Cl. __, 591 F.2d

1300, cert. granted, 99 S.Ct. 2880 (1979)..... 9,12, 14, 15

Morton v. Mancari, 417 U.S. 535 (1974). .......20 ee eee 19

Navajo Tribe v. United States, 193 Ct. Cl. 1095

‘bh yb) Me rrr ey hie eee se ee ee ho 15,18

Ottawa Tribe v. United States, 8 Ind. Cl. Comm. 831

(1960), rev’d in part on other grounds, 166 Ct. Cl. 373

PRONE i. iene Rabe es COE Oar OU Ue ies e 19

2 a et ere ee

(iit)

Cases, continued: Page

Sioux Nation v, United States, 220 Ct. Cl, __, 601 F.2d

1157, cert. granted, 48 U.S.L.W. 3383 (1979) ......... 18

Smithmeyer v, United States, 25 Ct. Cl. 481 (1890),

OF ee ES Milica alta ba bke db aoocw ae 21

Three Affiliated Tribes of the Fort Berthold Reservation

v. United States, 182 Ct. Cl. 543, 390 F.2d 686 (1968) ...17

United States v, Creek Nation, 295 U.S. 103 (1935) ....... |

United States v. King, 395 U.S. 1(1969) .............. 9

United States v. Klamath and Moadoc Tribes, 304 U.S.

SO Nees SOR es od kre CD ROK Obs ae chek 16

Yankton Sioux Tribe v. United States, 272 U.S. 351

CR PR erase au a mek a 6 Ome eee cei wen 16

Treaties and Statutes:

Treaty of Wolf River of May 12, 1854, 10 Stat. 1064

RPA RRS ER AC SFE Rage or ne gm) Soo REE RY SiS ae 3

General Allotment Act, 25 U.S.C. §§ 331 et seg. (1976) ....15

Indian Claims Commission Act, Pub. L. No. 79-726, § 24,

60 Stat. 1049 (1946) (current version at 28 U.S.C.

Dr eee: oa, bie is Va sock bP EWS woes. passim

Menominee Termination Act, 25 U.S.C.A. §§ 891-902

(1963) (repealed by Pub. L. No. 93-197, 87 Stat. 770

(3973), 20:U.S.0. $908 (1976)). cc cc cee passim

Tucker Act, 28 U.S.C. § 1491 (1976).............. passim

6M PURE) BI So ov one ck 2

Miscellaneous:

BED Meee, Pee OPO OWE CEOTRD oe hk rit tebe 6

92 Cong. Rec. 5312-13 (Statement of Congressman

Jackson, Chairman of House Indian Affairs

COS 6 casey SR ew es wae aks hee. 12,13

H.R. Con. Res. 108 (Senate concurring), 83d Cong., Ist

PAGGis Ee OR EOE a ov nein ek kee ois ie 3

H.R. Rep. No. 1466 (Creating an Indian Claims Commis-

sion), 79th Cong., Ist Sess. 3 (1945) ............-.. 12

(wv)

Miscellaneous, continued: Page

S. Rep. No. 581 (Menominee Restoration Act), 93d

Cong., Ist Sess. 3-4 (1973) 2.1... eee cece cece eeees 6

Letter to Assistant Attorney General James W. Moorman

from the Solicitor of the Department of the Interior,

Novemnber 21,1078 o.o:0 cick 0 0 aie oie HR oO CoN ee 8's 17

Memorandum for the Commissioner of Indian Affairs by

Acting Solicitor Felix Cohen, April 22, 1946.......... 12

IN THE

SUPREME COURT OF THE UNITED STATES |

OCTCBER TERM, 1979

No.

THE MENOMINEE TRIBE OF INDIANS, et al.,

Petitioners,

THE UNITED STATES OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

Petitioners, the Menominee Tribe of Indians, et al.,

respectfully petition the Court to issue a writ of certiorari

to review the judgment order and opinion of the United

States Court of Claims in the “Basic Liability Decisicn,”

Docket 134-67, involving damages arising out of the

termination of the Menominee Indian Tribe.

OPINION BELOW

On July 19, 1978, the Trial Judge issued a decision

recommending that the United States be found liable for

damages arising out of the unjustified termination of the

Menominee Indian Tribe. The Court of Claims, in its

opinion of October 17, 1979, reported at 221 Ct. Cl.

___, 607 F.2d 1335 (1979), reversed, holding that it

had no jurisdiction to hear non-constitutional congres-

sioral breach of trust claims. The opinion of the Court

of Ciaims is reprinted as Appendix A and the opinion of

the Trial Judge as Appendix B.

JURISDICTION

The judgment of the Court of Claims was entered on

October 17, 1979, and this petition for a writ of cer-

tiorari was filed within 90 days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1255(1) (1976).

QUESTION PRESENTED

Whether the Court of Claims has jurisdiction over

claims for money damages arising out of a breach by

Congress of the United States government’s treaty

obligations and fiduciary duties to the Menominee Indian

Tribe; or

Whether the Court of Claims, which clearly has juris-

diction over a claim for money damages against the

United States pursuant to 28 U.S.C, §§ 1491, 1505

(1976), based on a breach of the governments treaty

obligations and fiduciary duties to the Menominee Indian

Tribe, loses that jurisdiction where Congress rather than

the Secretary of the Interior is responsible for the actions

constituting the breach.

1 ee >

NE ae a .

AUTHORITIES INVOLVED

Indian Claims Commission Act, Pub. L. No. 79-726,

§ 24, 60 Stat. 1049 (1946) (current version at 28 U.S.C.

§ 1505 (1976)). A copy of section 24 of the original

Act is reprinted as Appendix C.

The Tucker Act, 28 U.S.C. § 1491 (1976), reprinted

as Appendix D.

The Menominee Termination Act, 25 U.S.C.A. §§ 891-

902 (1963) (repealed by Pub. L. No. 93-197, 87 Stat.

770 (1973), 25 U.S.C. § 903 (1976)). A copy of the

Termination Act is reprinted as Appendix E.

Treaty of Wolf River of May 12, 1854, 10 Stat 1064 |

(1854), reprinted as‘Appendix F.

STATEMENT OF CASE

BACKGROUND

The Menominee Indian Reservation was established in

1854 by the Treaty of Wolf River. 10 Stat. 1064 (1854);

Menominee Tribe v. United States, 391 U.S. 404, 405

(1968). Pursuant to the Treaty, fee title to the approxi-

mately 276,480-acre Reservation was held by the United

States in trust for the benefit of the Menominees “for a

home, to be held as Indian lands are held.” The land was

about 95 percent forested, unallotted, and was managed

by the federal government as a commercial forest.

In 1953, after the Menominees had occupied their

Reservation for almost a century, Congress, by con-

current resolution, directed the Secretary of Interior to

recommend legislation to withdraw federal supervision

over certain Indian tribes. H.R. Con. Res. 108 (Senate

concurring), 83d Cong., Ist Sess., 67 Stat. B132 (1953).

The Menominees were among the tribes listed in this

resolution. Congress’ intent in passing this resolution

was to reduce government expenses associated with the

Bureau of Indian Affairs (Trial Judge Opinion, App. B

at 24a-25a; Fdgs. of Fact 13-14, App. B at 6la-62a

and to get the United States “out of the Indian business.”

Trial Judge Opinion, App. B at 24a-28a, 52a; Fdg. of

Fact 108, App. B at 122a.

Approximately one year later, Congress passed the

Menominee Termination Act, 68 Stat. 250 (1954), as

amended, 25 U.S.C.A. §§ 891-902 (1963) (repealed by

Pub. L. No. 93-197. 87 Stat. 770 (1973), 25 U.S.C.

§ 903 (1976)). The Menominees were singled out for

an early termination by Senator Watkins, Chairman of

the Indian Subcommittee of the Senate Committee

on Interior and Insular Affairs, who believed that the

Menominees should be the first to be terminated, since

they had recently won an $8.5 million judgment against

the United States in the Court of Claims, and because

superficially they seemed more acculturated than they

in fact were. Fdg. of Fact 51, App. B at 80a-81a.

The stated purpose of the Menominee Termination Act

was “to provide for orderly termination of Federal super-

vision over the property and members” of the Tribe.

95 U.S.C.A. § 891 (1963). But the Tribe itself was made

responsible for creating a plan to take over the United

States government’s obligation to manage tribal property

and provide services to the Indian community. The

Secretary of Interior’s role was limited to approving or

disapproving the plan. The Act, as amended, required

that on or before April 30, 1961, the Secretary transfer

all real and personal property held in trust for the Tribe

to a tribal corporation, or if none existed, to a trustee

chosen by the Secretary. The Act also provided that

after the transfer of title to the Tribe, all federal super-

vision was to Cease:

Seater, favors

See ered

[I]ndividual members of the tribe shall not be

entilled to any of the services performed by the

United States for Indians because of their status as

Indians, [and] all statutes of the United States

which affect Indians because of their status as

‘Indians shall no longer be applicable to the members

of the tribe,.... (25 U.S.C.A. § 899 (1963).)

Although the Menominees opposed termination and

sought to have the Act repealed, the Tribe attempted to

develop a plan for the management of its resources. Trial

Judge Opinion, App. B at 29a, 34a-42a; Fdgs. of Fact

41, 43-49, App. B at 78a-80a. After being forced

to accept various restrictions imposed by the federal

government and the State of Wisconsin, the Menominees

submitted a plan which called for the creation of a

Wisconsin state corporation to hold the property of the

Tribe, manage the forest and sawmill operations, and

provide some of the services previously provided by the

federal government. Trial Judge Opinion, App. B at

3la-33a, 39a-43a; Fdgs. of Fact 27-34, 55-68, App. B

at 66a-71la, 83a-9la. Menominee County was created

by the State of Wisconsin to encompass the lands form-

erly a part of the Reservation.

The Menominees, unsuccessful in preventing termi-

nation and believing that their termination had been

poorly conceived, badly implemented, and forced upon

them despite the better judgment of almost everyone

involved,' brought suit in the Court of Claims to recover

1Congress, 12 years after terminating the Menominee Tribe,

recognized that termination was wrong and harmful to the Me-

nominees, that it was “‘ill conceived,”’ that the Tribe was coerced

into accepting termination, that it had been a bitter failure causing

much harm and damage to the Tribe, and reversed termination

by restoring federal jurisdiction over the Menominee Tribe and

its assets. Menominee Restoration Act, 87 Stat. 770 (1973),

| footnote continued |

damages for the losses incurred as a result of the termi-

nation process and the government’s violations of its

fiduciary obligations to the Menominees.

THE PROCEEDINGS IN THIS CASE

Plaintiffs filed this action in the Court of Claims on

April 25, 1967. Trial commenced December 1, 1971, on

nine claims, three on the issue of both liability and

damages, and six on the question of liability only.? The

remaining claim, Mismanagement of Tribal Funds, was

severed for later trial. The Trial Judge, on July 19, 1978,

issued his first recommended decision, in which he held

that the Termination Act, as enacted and implemented,

constituted ‘an abrogation of defendant’s fiduciary

obligation growing out of its treaty and trust relation-

ship.” Trial Judge Opinion, App. B at 54a. He found

that the United States had a fiduciary obligation to the

Menominee Indians, and that it breached this duty by

terminating them under circumstances which showed

25 U.S.C. § 903 (1976). Congressman Haley described the Termi-

nation Act as “one of the unfortunate moves that the Congress

made.” 119 Cong. Rec. 34301-02 (1973). Congressman Saylor,

speaking in favor of the Restoration Act, stated:

The bill before us, H.R. 10717, is not a panacea nor a perma-

nent solution to the problems of the Menominee Tribe of

Indians, nor does tt undo the human suffering and economic

damage imposed on these people over the past 20 years. It

is not a perfect bill, Mr. Speaker, but it is a better bill than

the monstrosity that was rammed through this House in

1954 as part of the mistaken ‘‘termination policy” of those

times. (119 Cong. Rec. 34302 (1973), emphasis added.)

See also S. Rep. No. 581 (Menominee Restoration Act), 93d

Cong., Ist Sess. 3-4 (1973); Trial Judge Opinion, App. B at 50a

n.42; Fdgs. of Fact 92-94, App. B at 109a-110a.

2The claims are described in the opinions of the Court of

Claims (Menominee Tribe v. United States, 607 F.2d 1335, 1338

n.2; App. A at 3a n.2) and the Trial Judge (App. B at 21a n.2).

that the Tribe was ill-prepared for termination and would

suffer serious losses if it took place. Trial Judge Opinion,

App. B at 53a-54a. He felt the United States also

breached its obligations as a trustee by failing to assist

the Menominees in preparing for the problems that would

inevitably occur, and by refusing to reconsider either the

policy or the specific mechanisms of termination. Trial

Judge Opinion, App. B at 53a.

3Trial Judge Spector made the following ultimate findings

(Fdgs. of Fact 198-15, App. B at 122a-124a):

108. The Menominee Termination Act was initiated by

the United States, in the interests of the United States. It

was not in the best interests of the Menominees as a tribe

nor as individual Indians that the federal trusteeship be

terminated, Termination policy was initiated by the United

States in order to “get out of the Indian business” and to

reduce costs, specifically within the Bureau of Indian Affairs.

109. The Menominee Tribe and its members did not

effectively consent to termination of federal supervision and

trusteeship over the tribe, its members, and its assets.

110, Termination was not warranted under any of the

four criteria established by Acting Commissioner of Indian

Affairs Zimmerman. Defendant failed to apply the criteria

which it enunciated, Adequate studies were not made and

had they been made in advance, they would have demon-

strated that the Menominee did not meet those criteria for

ter.aination.

111. Following passage ‘of the Termination Act of 1954,

defendant failed to adequately assist the Menominees to

prepare for final termination which became effective in 1961.

112. During the period 1954-1961 it became apparent

that the Menominees were not prepared for termination and

that the tribe and its assets would suffer harmful conse-

quences if a termination policy was implemented. There was,

nevertheless, no reappraisal of the policy of termination.

113. The Menominees were not trained to assume the

extensive responsibilities imposed upon them by involuntary

termination, They were not trained in self-government, nor

[footnote continued]

The Court of Claims, sitting en banc, reversed, and,

without reaching the merits of the issue, sua sponte

concluded that it lacked jurisdiction to hear a claim “that

a statute passed by Congress, though valid and constitu-

tional, is nevertheless a breach of trust owed by the

Federal Government to the Indians.” Menominee Tribe

v. United States, 607 F.2d 1335, 1339 (1979), App. A

at 5a. The court suggested two bases for this conclusion.

First, it argued that there was no jurisdiction under

either sections 1491 or 1505 because the claim was not

“founded” upon the Constitution or an act of Congress.

607 F.2d at 1341, App. A at 9a. The court specifically

rejected the notion that the Termination Act could be

used as a foundation for jurisdiction, as this was the

alleged breach of plaintiffs’ pre-existing rights rather than

the source of such rights. Jd. Although the court ad-

mitted that the Menominee treaties and resultant trust

relationship could logically be considered an “express or

implied contract with the United States,” it declined to

do so in this case because of the “general history of

consents-to-sue in this Court.” 607 F.2d at 1341-42,

to assume supervisory management or sub-management

positions with respect to the Menominee Forest or sawmill

operations.

114. If termination was to be imposed on the Menominee

Tribe, it required a period of from one to two generations

(20-40 years), of phased withdrawal from federal super-

vision, to effect the transition without serious damage to the

tribe.

115. Failure of the defendant to prepare the tribe for

termination, and the imposition of icrmination without

the necessary preparation, constituted an abrogation of

defendant’s fiduciary obligations growing out of its treaty

and trust relationship to the Menominee Tribe and its

members. Defendant’s acts and omissions constitute breach

of a fiduciary duty owned to plaintiffs.

App. A at 9a. The court gave the same cursory conclu-

sion for that provision of section 1491 providing juris-

diction for “liquidated or unliquidated damages in cases

not sounding in tort.’”* Its treatment of section 1505

jurisdiction was equally brief; the court noted only that

that section had been construed to cover all of the

grounds of section 1491. 607 F.2d at 1342, App. A at

9a. Although section 1505 specifically provides juris-

diction ‘for claims “arising under . . . treaties of the

United States,” the Court of Claims concluded that this

language “is neither unambiguous nor exact. ...”’ 607

F.2d at 1542, App. A at 10a.

The second major basis for the court’s decision was

its belief that “Congress has the unilateral and plenary

power (to the extent that there is no violation of the

Constitution, including the Just Compensation Clause)

to abrogate or modify, by statute, a prior treaty with

Indians.” Jd. In light of that principle, the court found

it “hard to believe” that by using the words “treaties”

and “express or implied contract,” Congress intended

the Indians to be able to receive monetary damages when

a valid, constitutional statute constituted a breach of the

United States’ fiduciary duty. 607 F.2d at 1342, App. A

at lla. The court, apparently, did not find it “hard to

believe”’ that Congress intended the payment of money

*607 F.2d at 1342, App. A at 9a. The court’s sole support for

this conclusion was United States v. King, 395 U.S. 1 (1969)

which held only that the Court of Claims does not have jurisdiction

to issue declaratory judgments. This is of no relevance to the

instant case, where the Menominees are suing for money damages.

As the Court of Claims stated in Mitchell v. United States, 219 Ct.

Cl. —, 591 F.2d 1300, 1302 n.10, cert. granted, 99 S.Ct. 2880

(1979), it does have jurisdiction to hear monetary claims based on

equitable principles. Plaintiffs’ case here falls directly into that

category.

DEAS,

2 PP ee

tie el Pe Sey

-——— -

SE Ren = Ree

Tire

ey.

damages when a valid constitutional statute constitutes

a Fifth Amendment taking, but did so when the same

kind of damages resulted from a breach of fiduciary

obligations arising under a congressionally ratified treaty.

Although the court, in analyzing whether or not it had

jurisdiction to consider the Menominees’ claim, focused

exclisively on the enactment of the Termination Act, its

ruling was considerably broader, and plaintiffs’ claims

were dismissed to the extent that they were based on (1)

any evaluation of congressional motives or interests; (2)

any failure of Congress to prepare or assist the Tribe in

termination, make full disclosure of pertinent facts or

evaluate whether the Tribe could handle termination;

and (3) any duress or pressure by Congress on the

Menominees to obtain their consent to termination. 607

F.2d at 1344-45, App. A at 14a. The court further held

that with respect to the Department of the Interior,

the United States cannot be held liable for its action

unless the Secretary violated either the Constitution or

a specific congressional directive. 607 F.2d at 1345,

App. A at 15a. The court cited no authority or rationale

whatsoever for this proposition.

The net impact of the Court of Claims’ decision is to

eliminate the Indians’ right to recover money damages

for violation of sacred treaty and statutory obligations,

and to re. ‘rict recovery to only two circumstances:

where a Fifth Amendment taking occurs, and where a

federal official (not Congress) violates a specific treaty

or statute. 607 F.2d at 1344, App. A at 13a. If this

holding by the Court of Claims is to stand, its unfairness

to all Indian tribes across the country (let alone its

frustration of the congressional intent in enacting the

Indian Claims Commission Act) becomes obvious.

Ee A ee i ae le de te ae ee a ae a manna teas em tet ali ii, Micralite, al tae, ain itt Mt ta

REASONS FOR GRANTING THE WRIT

THE ISSUE IN THIS CASE IS ONE OF SIGNIFICANT

_ IMPORT UNDER THE CONSTITUTION, LAWS AND

TREATIES OF THE UNITED STATES

The issue in this case is important because it deals with

the jurisdiction conferred by Congress upon the Court

of Claims and directly affects the accountability of the

United States to Indian tribes resulting from treaties and

statutes. The decision of the Court of Claims results

from the erroneous interpretation of the purpose and

scope of section 24 of the Indian Claims Commission Act

as well as the major principles of Indian trust law. If

allowed to stand, it will severely limit the ability of

Indians to hold the United States accountable for its

mismanagement of Indian property and affairs.

Section 24 of the Indian Claims Commission Act was

expressly enacted to allow future Indian claims to be

litigated without the necessity of special jurisdiction 1

acts.

Moreover, in order to prevent any future accumula-

tion of unsettled claims, the statutory prohibition

against litigation in the Court of Claims growing out

of agreements with Indian tribes would be lifted and

the Indian would henceforth have the same right

as his white or black neighbor to secure a full and

free hearing in the Court of Claims, or any other

appropriate tribunal, on any controversy with the

Federal Government that may arise in the future.

Once Indian tribes are given the same right as any

non-Indian to bring suit on grievances that may

arise in the future, there would be no need to accord

Tena men sar ans ac

a +. ~ +

LEN Ee ee Seas OL ER eae

ener a area cree

SE eae oe

any special treatment to such Indian claims as may

subsequently arise.© (Emphasis added.)

If the decision below is allowed to ee pronase

Congress to Ss

will be forced to go back to ras

isdicti d upon a breach 0

“risdictional acts for claims base :

eee) treaty obligations and fiduciary ce eng

bilities to Indian Tribes where Congress, rather an “

agent of the government, is responsible for the sion

constituting the breach. This is contrary to the legis

lative intent of the Act.

The court’s decision also negates any teoeel ln

well as the specific language of, section 24. I .

had merely wanted to include Indian pigsto re nage

of persons eligible to sue under section 1491, some

have simply amended that section to so se De

Congress enacted a new provision specifically a Ai

Court of Claims jurisdiction to hear the types of pe

included in section 1491 as well as those beige 8 te

Indians, arising under their treaties with the Un

States.

The Court of Claims’ decision will also alter the “ce

principles of Indian trust law by severely limiting -

ability of the tribes to make the United States a

able for mismanagement of Indian affairs. esas :

are able to recover monetary damages for breach o 7

claims, they will be left remediless in all ernie a8

property rights have been damaged by actions 4

United States save those which meet the narrow criterl

of a Fifth Amendment taking. As the Court of my

aptly realized in Mitchell v. United States, 219 Ct. Ul.

i i laims Commission),

SHR. Rep. No. 1466 (Creating an Indian C

ceceaiay tit Sess. 3 (1945). See also Memorandum pom

Commissioner of Indian Affairs by eo phagy eid ving a8 o

i : ec.

i] 22, 1946, reprinted as App. G; ‘ong. :

‘casos of Congressman Jackson, Chairman of House Indian

Affairs Committee).

, ——, 591 F.2d 1300, 1302, cert. granted, 99 S.Ct.

2880 (1979),

It is inconceivable that Indian allotment-

patentees whose lands were wholly wasted by the

~Government could not recover compensation in this

court for such a violation of fiduciary obligation.

If there is no remedy in the Court of Claims, there is in

effect no miu redress. Jd. Without such redress, there

is no incentive for the United States to carry out its

fiduciary obligations to Indians in a prudent fashion.

The Department of Interior recognized this, and told

Congress that it did not want to be in a position where

it could mishandle Indian funds and property without

being held accountable. 92 Cong. Rec. 5312 (1946)

(Statement of Congressman Jackson). The same rationale

applies equally to all parts of the government which deal

with Indian affairs, including Congress.

If the court’s decision below is allowed to stand, then

the fiduciary obligations of the United States government

to the Indians, embodied in treaties and previously

protected by the courts, will be eliminated. Such elimi-

nation could be accomplished merely by having the

Congress, rather than the Executive Branch, take the

initiative in breaching the pertinent fiduciary obligations.

It is hard to conceive that Congress intended such an

outrageous result when it enacted the Indian Claims

Commission Act. This would all be in direct violation

of section 24 of the Indian Claims Commission Act,

which provides:

Provided, however, That nothing contained in this

section shall be construed as altering the fiduciary

or other relations between the United States and

the several Indian tribes, bands, or groups. (60 Stat.

1055-56.) °®

Appendix C at 125a. This proviso was deleted upon recodifi-

cation, as unnecessary, since a provision conferring jurisdiction

[footnote continued]

By refraining from exercising jurisdiction over breach

of trust claims, the Court of Claims is fundamentally

altering that relationship.

II.

THIS DECISION CONFLICTS WITH PRIOR DECI-

SIONS OF BOTH THIS COURT AND THE COURT

OF CLAIMS

The Court of Claims’ decision that neither the Me-

nominee treaties, statutes, nor the Termination Act itself

constitute a basis for jurisdiction is directly contrary to

its holding in Menominee Tribe v. United States, 179

Ct. Cl. 496, 388 F.2d 998 (1967), aff'd, 391 U.S. 404

(1968), a case also involving a claim of monetary damages

for rights lost through termination.” In that case, the

court specifically characterized the case as one arising

“under the Treaty of 1854 . .. and the Termination

Aét,” and held that it had jurisdiction under sections

1505 and 1491. 179 Ct. Cl. at 501, 388 F.2d at 1001.

In the present case, however, the court comes to the

opposite conclusion, and holds that neither the treaties

nor the Termination Act serves as a basis for jurisdiction.

Similarly, in its recent decision in Mitchell v. United

States, 219 Ct. Cl. __, 591 F.2d 1300, cert. granted,

99 S.Ct. 2880 (1979), the Court of Claims stated:

Our continued acceptance of Indian claims for

breach of trust—where the existence of the trust

obligation is founded on a statute, treaty, executive

order or regulation, or an agreement—comports

fully with the expectation of Congress that what is

now 28 U.S.C. section 1505 (first enacted in 1946

cannot in any way alter the relationship of the federal government

with the Indians. 28 U.S.C.A. § 1505 (1965), Reviser’s Note.

7The specific rights involved in that case, the Menominees’

hunting and fishing rights, are not involved in the present litigation.

as section 24 of the Indian Claims Commissi

60 Stat. 1055) would cover the onab- 1606 “egal

claims (te., other than purely “moral” claims) of

Indian entities ,... (219 Ct. Cl. at __, 591 F.2d

at 1303; emphasis added.)

Although the trust obligation before the court in Mitchell

was based on the General Allotment Act, 25 U.S.C

§§ 331 et seq. (1976), the Court of Claims niknowled on

that it would have jurisdiction to hear breach of it

claims founded upon a fiduciary relationship established

by treaty. 219 Ct. Cl. at __., 591 F.2d at 1303.

The court’s conclusion that it has no authority to

consider non-constitutional breach of trust cases arisin

out of the enactment of a valid, constitutional mg

also is contradicted by its own previous decisions. In

Confederated Salish and Kootenai Tribes v. United States

167 Ct. Cl. 405 (1964) & 175 Ct. Cl. 451, cert. denied,

385 US. 921 (1966), the Court of Claims held that

Congress, in enacting a law requiring the Indians to pay

the surveying costs of opening up the Reservation when

the treaty with the Indians required the goverment to

pay such costs, breached its fiduciary duty to the Tribes

The court accepted jurisdiction but specifically rejected

plaintiffs’ claim for interest on the award on the ground

that Congress’ action did not result in a Fifth Meiend.

ment taking.® 175 Ct. Cl. at 454-55. Similarly, in

Navajo Tribe v. United States, 193 Ct. Cl. 1095 (1971)

the court considered, on .the merits, whether Congress

breached its fiduciary duty to the Navajos by enactin

legislation which would authorize the States of Utah sot

MR shay bets Pr leyhpaets Congress’ action in this case as a

nt or contract, in which the

contract was the treaty between the Uni agreement or

: nited Stat

federated Salish and Kootenai Tribes. 175 Ct. Cl. ats. ore

New Mexico to impose taxes on the ialag —

received from leasing tribal lands. Thus, t ye “gh

of Claims’ determination in the instant case, ily

jurisdiction does not encompass claims that a Vv -

constitutional statute may be a breach of trust, con

dicts its prior decisions.

The Court of Claims’ decision also violates nig

mental tenets of Indian law previously laid down by : *

Court. As the court below recognized, _ i

plenary power over Indian affairs and may legis wae

any manner which it deems best benefits the needs yf if

Indians. Menominee Tribe v. United States, ~ ‘

1335, 1342 (1979), App- A at 10a, citing Lone Wo is

Hitchcock, 187 U.S. 553 (1903); see Cherokee Nation v.

Hitchcock, 187 U.S. 294 (1902). That power, ponerse

is subject to two types of limitations. The ys a

Claims recognized one of these aang ag fe

must pay just compensation pursuant to the hg

Amendment when, acting in its sovereign — Pe

appropriates Indian property for its own we hey

at 1342, App. A at 10a. See also Choate v. ga i

U.S. 665, 678 (1912); Yankton Sioux Tribe v. Unt ‘

States, 272 U.S. 351 (1926); Shoshone Tribe v. eset

States, 299 U.S. 476 (1937); United States v. Kiama :

and Moadoc Tribes, 304 U.S. 119 (1938); Alcea Ban

of Tillamooks v. United States, 329 U.S. 40 (1946).

But the court failed to recognize that there exist .

limitations placed upon Congress when it gare

acts pursuant to its constitutional power to regu -

Indian affairs. These limitations derive both from et

Constitution and from the guardianship role of -

United States. In United States v. Creek Nation, 29

U.S. 103, 109-10 (1935), this Court said:

The tribe was a dependent Indian community under

the guardianship of the United States, and therefore

its property and affairs were subject to the control

and management of that government. But this

power to control and manage was not absolute.

‘While extending to all appropnate measures for

protecting and advancing the tribe, it was subject to

limitations inhering in such a guardianship and to

pertinent constitutional restrictions. (Emphasis

added.)

See also Delaware Tribal Business Comm. v. Weeks, 430

U.S. 73 (1977); Three Affiliated Tribes of the Fort

Berthold Reservation v. United States, 182 Ct. Cl. 543,

390 F.2d 686 (1968).

The Department of the Interior has recognized that

Congress’ plenary power over Indian affairs is subject

to these limitations inherent in a guardianship. In a

November 21, 1978, letter to Assistant Attomey General

Jamnes W. Moorman, the Department’s Solicitor stated:

But the power of Congress to implement the trust

obligation would not seem to authorize enactments

which are manifestly contrary to the Indians best

interest. This does not mean that Congress could

never pass a statute contrary to its determination

that the Indians’ best interests are served by it.

Congress in its exercise of other powers such as

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

manner inimicable to Indians. However, where

Congress is exercising its authority over Indians,

rather than some other distinctive power, the trust

obligation would appear to require that its statutes

be based on a determination that the protection

of Indians will be served. Otherwise, a statute

would not be rationally related to the trusteeship

obligation to Indians.

Contrary to the Court of Claims’ assertion, the mere fact

that Congress is purportedly acting in furtherance of its

fiduciary duty to benefit the Indians does not defeat

liability, when such actions are in fact detrimental to the

best interests of the tribe.

Nor does the fact that Congress is acting pursuant to

its power over Indians immunize its actions from judicial

review. Sioux Nation v. United States, 220 Ct. Cl. —_,

601 F.2d 1157, cert. granted, 48 U.S.L.W. 3383 (1979);

Choctaw Nation v. Atchison, Topeka & Santa Fe RR,

396 F.2d 578 (10th Cir. 1968). In Delaware Tribal

Business Comm. v. Weeks, 430 U.S. 73, 84 (1977), this

Court said:

The statement in Lone Wolf that the power of

Congress “has always been deemed a political one,

not subject to be controlled by the judicial depart-

ment of the government,” however pertinent to

the question then before the Court of congressional

power to abrogate treaties, has not deterred this

Court, particularly in this day, from scrutinizing

Indian legislation to determine whether it vio-

lates the equal protection component of the Fifth

Amendment. (Citations eliminated.) .

The Court of Claims previously has recognized this fact,

having scrutinized legislation enacted pursuant to Con-

gress’ power over Indian affairs. Menominee Tribe v.

United States, 179 Ct. Cl. 496, 388 F.2d 998 (1967),

aff'd, 391 U.S. 404 (1968); Confederated Salish and

Kootenai Tribes v. United States, 167 Ct. Cl. 405 (1964)

& 175 Ct. Cl. 451, cert. denied, 385 U.S. 921 (1966);

Navajo Tribe v. United States, 193 Ct. Cl. 1095 (1971).

The standard of review employed by this Court in

analyzing Indian legislation is whether the statute is

“tied rationally to the fulfillment of Congress’ unique

obligation toward the Indians.” Delaware Tribal Business

Comm. v. Weeks, 430 U.S. 73, 85 (1977). See also

Morton v. Mancan, 417 U.S. 535, 555 (1974). The

Menominee Termination Act was not rationally tied to

Congress’ obligation toward the Indians, but was in direct

violation of it. That an act of Congress itself may be a

breach of trust has been recognized. Confederated Salish

and Kootenai Tribes v. United States, 167 Ct. Cl. 405

(1964) & 175 Ct. Cl. 451, cert. denied, 385 U.S. 921

(1966); Fort Peck Indians of the Fort Peck Reservation

v. United States, 34 Ind. Cl. Comm. 24, 48-49 (1974),

rev'd and remanded in part on other grounds, 209 Ct. Cl.

1045 (1975). That Congress, when terminating a tribe,

does not divest itself of its fiduciary duty, but rather

assumes the burden both of insuring that the Indians are

ready for termination and of carrying out the process

in such a manner that protects the tribe, has also been

recognized. Klamath and Modoc Tribes v. United States,

193 Ct. Cl. 670, 688-89, 436 F.2d 1008, 1017, cert.

dented sub nom. Anderson v. United States, 404 U.S.

950 (1971); Creek Nation v. United States, 24 Ind. Cl.

Comm. 238, 250 (1970), aff'd 216 Ct. Cl. __, 578

F.2d 1389, cert. denied 439 U.S. 859 (1978); Ottawa

Tribe v. United States, 8 Ind. Cl. Comm. 831, 883-84

(1960), rev'd in part on other grounds, 166 Ct. Cl. 373

(1964).

THE WRIT SHOULD ISSUE IN LIGHT OF THIS

COURT’S DUTY TO EXERCISE SUPERVISION

OVER THE LOWER FEDERAL COURTS

The Court of Claims indicated in its decision that the

question of whether it had jurisdiction to hear non-

constitutional breach of trust claims was one of first

impression. 607 F.2d at 1340, App. A at 7a. Notwith-

standing this fact, the court felt justified to decide the

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issue without benefit of reasoned input from either party.

The question of jurisdiction has never been briefed by

the parties at any time throughout the long history of

this litigation, and was first raised by the court, sua

sponte, at oral argument. A decision of such import to

both parties as well as tc the state of the law should not

have been made in such a cavalier fashion. At the very

least, after 13 years of litigation, the Menominees should

be allowed to present their arguments on jurisdiction to

at least one tribunal before their case is dismissed.? This

is particularly true for those portions of the court's

decision which go beyond its analysis and are not sup-

ported by either case law or reason.

This Court has previously granted a writ of certiorari

to review issues of first impression important to the

administration of Indian affairs, United States v. Alcea

Band of Tillamooks, 329 U.S. 40, 42 (1946), and should

do so again in this case in light of the importance of this

issue to the continued management by the United States

of Indian affairs and property.

CONCLUSION

The Court of Claims assumed, without deciding, that

the Trial Judge was correct in finding a fiduciary duty

between the United States and the Menominee Indian

Tribe and that the United States violated its fiduciary

obligations to the Menominees. Prior holdings of this

Court, the Courts of Appeal, and the Court of Claims

construe that fiduciary duty as requiring that the laws

enacted by Congress, pursuant to its plenary power

over Indian affairs, be consistent with its guardianship

9Not all of the Menominees’ claims are dismissed under the

Court of Claims’ decision, as some of them are based on Fifth

Amendment takings.

obligations. If Congress enacts legislation which is

contrary to that obligation and causes monetary loss to

the tribe, then the Indians’ only remedy is in the Court

of Claims. By holding that it has no jurisdiction to

consider this type of breach of trust claim, the Court of

Claims deprives the Indians of their only forum for relief.

This defeats the purpose of section 1505, and will once

again make it necessary for Indians to appeal to Congress

to obtain special jurisdictional acts for the redress of

their grievances. It also fundamentally alters the trust

relationship between the United States and the Indians

by allowing Congress to ride roughshod over its historic

agreements with the Indians. Such a result is neither

desirable nor compelled by either the language of sections

1491 and 1505 or the history of Indian claims.

If Congress passed a statute the result of which abro-

gated a contract, express or implied, between the United

States and a non-Indian, the Court of Claims would

have no problem finding it had jurisdiction to hear a

resulting claim for money damages pursuant-.to, 28

U.S.C. § 1491.!° How then, can the Court of Claims

distinguish this from a statute affecting Indians that

abrogates and violates treaties and statutes with those

Indians? A violation of a trust obligation to an Indian

tribe was certainly intended to be covered by Congress

under section 24 of the Indian Claims Commission

Act (28 U.S.C. § 1505), irrespective of the branch of

government involved.

10See, e.g., Smithmeyer v. United States, 25 Ct. Cl. 481 (1890),

147 U.S. 342 (1893), in which this Court held that the Court of

Claims had jurisdiction, under its general jurisdictional grant, to

award monetary damages arising out of an act of Congress which

rescinded petitioner’s contract for the design of the congressional

library.

It should be noted that this Court has recognized that

important issues arise when federal supervision of Indian

tribes is terminated, and has granted a writ of certiorari

to review those issues. Affiliated Ute Citizens of Utah

v. United States, 406 U.S. 128, 141 (1972).

For the foregoing reasons, the writ of certiorari should

issue. Petitioners also suggest that this may be an appro-

priate case for this Court to summarily reverse the Court

of Claims’ decision. 3

Respectfully submitted,

ANGELO A. IADAROLA

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 833-9800

Attorney for Petitioners

Of Counsel:

Puitip A. NACKE

JACQUELYN R. LUKE

WILKINSON, CRAGUN

& BARKER

APPENDIX

APPENDIX A

In the United States Court of Glaims

No. 134-67 (Basic)

(Decided October 17, 1979)

THE MENOMINEE TRIBE OF INDIANS, ET AL. v. THE

UNITED STATES

Angelo A. Iadarola, attorney of record, for plaintiffs.

Frances L. Horn, Jerry C. Straus, Robin A. Friedman, and

Wilkinson, Cragun & Barker, of counsel.

. Glen R. Goodsell, with whom was Assistant Attorney

General James W. Moorman, for defendant. Richard L.

Beal, of counsel.

Before FRIEDMAN, Chief Judge, Cowen, Senior Judge,

Davis, NicHots, KuNnzic, BENNETT and SmiTH, Judges,

OPINION

DAVIS, Judge, delivered the opinion of the court:

This case arises out of the Menominee Termination Act

of 1954, Pub. L. No. 399, ch. 303, 68 Stat. 250, as amended,

25 U.S.C. §§ 899-902 (1970), a different aspect of which was

previously before the court in Menominee Tribe of Indians

v. United States, 179 Ct. Cl. 496, 388 F.2d 998 (1967),

affirmed 391 U.S. 404 (1968). Under the Treaty of Wolf

River in 1854, 10 Stat. 1064, the Menominee Tribe received

and occupied for over a century a reservation in Wisconsin.

In 1953 Congress by concurrent resolution (H. Con. Res.

108, 67 Stat. B132) directed the Secretary of the Interior to

recommend legislation for withdrawing federal supervision

over certain American Indian tribes, including the

Menominees. A year or so later, the Congress passed the

Menominee Termination Act of 1954, amending it in 1956

(Pub. L. No. 715, ch. 601, Pub. L. No. 718, ch. 604, 70 Stat.

544, 549), 1958 (Pub. L. No. 85-488, 72 Stat. 290), and 1960

(Pub. L. No. 86-733, 74 Stat. 867). Actual termination came

ut on April 30, 1961.

a samen by the Supreme Court, 391 US. at

408-10, the purpose of the Termination Act was by its

terms “ ‘to provide for orderly termination of Federal

supervision over the property and members’ ’ of the tribe.

Under the Act’s provisions (as amended), the tribe was to

formulate a plan for future control of tribal property and

service functions theretofore conducted by the United

States. On or before April 30, 1961, the Secretary was to

transfer to a tribal corporation or to a trustee chosen by

him all property real and personal held in trust for the

tribe by the United States. The Act also provided for

closing of the membership roll of the tribe; this was done in

December 1957.

“The Menominees submitted a plan, looking toward the

creation of a county in Wisconsin out of the former

reservation and the creation by the Indians of a Wisconsin

corporation to hold other property of the tribe and its

members. The Secretary of the Interior approved the plan

with modifications; the Menominee Enterprises, Inc. [one

of the plaintiffs herein] was incorporated; and numerous

ancillary laws were passed by Wisconsin integrating the

former reservation into its county system of government.

391 U.S. at 408-09 (footnotes omitted). The Act also

provided that after the transfer by Interior of title to the

property of the tribe, all federal supervision was to end in

that “individual members of the tribe shall not be entitled

to any of the services performed by the United States for

Indians because of their status as Indians,” and “all

statutes of the United States which affect Indians because

of their status as Indians shall no longer be applicable to

the members of the tribe.” 25 U.S.C. § 899 (1970). The Act

. %

goes on to say that “the laws of the several States shall

apply to the tribe and its members in the same manner as

they apply to other citizens or persons within their

jurisdiction.” Id.!

Much dissatisfied with the termination and its results,

the Menominee Tribe (together with various representa-

tives of that entity and its members) brought this suit in

April 1967, under 28 U.S.C. § 1491 and § 1505, for various

items of damage said to have followed upon the Termina-

tion Act and the termination. The essential charge is that

the passage and implementation of the Act was a breach of

the trust owned by the United States to the Menominees,

and in some instances a violation of the Just Compensation

Clause of the Fifth Amendment.2 -

The trial judge and the parties agreed to present first to

the court the general issue of whether the United States is

liable to the plaintiffs for breach of trust on account of the

enactment and putting into effect of the Termination Act.

Accordingly, after a trial devoted to that subject (and

others), Trial Judge Spector issued his opinion and findings

on that question.? Without in any way separating the

Congressional action in considering and enacting the

Termination Act, or the mandatory provisions of that Act,

from the actions of the Interior Department under the

statute and other legislation, the trial judge ruled that a

breach of trust had occurred (reserving for further determi-

| We have held that the Termination Act did not abolish the tribe and that the

Menominee Indians continue to constitute a tribe which is eligible to bring suit here

under 28 U.S.C. § 1505. Menominee Tribe of Indians v. United States. supra. 179 Ct.

Cl. at 500-01, 388 F.2d at 1000-01

2 The original petition included claims bearing. the following descriptions:

Menominee Deed (Forest) Restrictions; Forest Management; Mill Mismanagement;

Highway Rights of Way; Power Line Right of Way; Public Sewerage System; Soo-

Line Right of Way (Railroad); Termination Expenses; and Mismanagement of Tribal

Funds. Plaintiffs have since abandoned the claim entitled Soo-Line Right of Way and

added one entitled Loss of Tax Exemption. Pursuant to request of counsel, an order

was issued May 21, 1973 separating the claims into nine separate dockets as follows:

Deed Restrictions No. 134-67A; Forest Mismanagement No. 134-67B; Mill

Mismanagement No. 134-67C; Highway Rights of Way No. 134-67D; Termination

Expenses No. 134-67E; Loss of Tax Exemption No. 134-67F; Power Line Rights of

Way No. 134-67G; Public Sewerage System No. 134-67H; Mismanagement of Tribal

Funds No. 134-671 (severed for later trial).

' The opinion is denominated by the trial judge as “the basic opinion underlying a

large and complex group of cases each involving a separate claim.”

nation the damages arising out of that breach). Detailing

the reasons why he considered that termination was not in

the best interests of the Menominees but was initiated by

the United States for its own interests, and why he

considered that the Menominees were pressured and

pushed into termination without adequate assistance and

against their own interests—with “disastrous effect upon

the Indians’ assets and way of life’—the trial judge

concluded that this constituted “an abrogation of defend-

ant’s fiduciary obligations growing out of its treaty and

trust relationship to plaintiffs, and that defendant’s acts

and omissions constitute a breach of the fiduciary duty

owed to plaintiffs.” The general bases of this holding are

revealed by the trial judge’s ultimate findings of fact which

we reproduce in the footnote.‘ It is clear that the primary

+ 108. The Menominee Termination Act was initiated by the United States, in the

interests of the United States. It was not in the best interests of the Menominees as a

tribe nor as individual Indians that the federal trusteeship be terminated.

Termination policy was initiated by the United States in order to “get out of the

Indian business” and to reduce costs, specifically within the Bureau of Indian

Affairs.

109. The Menominee Tribe and its members did not effectively consent to

termination of federal supervision and trusteeship over the tribe, its members, and

its assets.

110. Termination was not warrnted under any of the four criteria established dy

Acting Commissioner of Indian Affairs Zimmerman. Defendant failed to apply the

criteria which it enunciated. Adequate studies were not made and had they been

made in advance, they would have demonstrated that the Menominee did not meet

those criteria for termination.

111. Following passage of the Termination Act in 1954. defendant failed to

adequately assist the Menominees to prepare for final termination which became

effective in 1961.

112. During the period 1954-1961 it became apparent that the Menominees were

not prepared for termination and that the tribe and its assets would suffer harmfu!

consequences if a termination policy was implemented. There was, nevertheless, no

reappraisal of the policy of termination.

113. The Menominees were not trained to assume the extensive responsibilities

imposed upon them by involuntary termination. They were not trained in self-

government, nor to assume supervisory management or sub-management positions

with respect to the Menominee Forest or sawmill operations.

114. If termination was tobe imposed on the Menominee Tribe. it required a

period of from one to two generations (20-40 years), of phased withdrawal from

federal supervision, to effect the transition without serious damage to the tribe.

115. Failure of the defendant to prepare the tribe for termination, and the

imposition of termination without the necessary preparation, constituted an

abrogation of defendant's fiduciary obligations growing out of its treaty and trust

relationship to the Menominee Tribe and its members. Defendant's acts and

omissions constitute breach of a fiduciary duty owned to plaintiffs.

ground of the trial judge’s conclusions is the enactment of

the Termination Act and its provisions.

_The case is now before us on the Government’s excep-

tions to the trial judge’s opinion and findings in which it

argues mainly that there was no breach of duty, imposed

by treaty or statue, by the United States in terminating

federa! supervision of the Menominee Tribe. We do not

consider that question because it is our view that, in 28

U.S.C. 8§ 1491 and 1505, Congress has not consented to suit

by Indians in this court on non-constitutional claims for

breach of.trust based directly on the passage and enact-

ment by Congress of legislation it considers appropriate but

which the claimant deems a violation of a fiduciary

obligation. In other words, we do not understand our

general jurisdictional provisions as giving us authority to

entertain a suit contending that a statute passed by

Congress, though valid and constitutional, is nevertheless a

breach of trust owed by the Federal Government to the

Indians.5

It is important to underscore at the beginning that this

case, as it now comes to us, does not involve at this stage

any claim by the Indian plaintiffs for a Fifth Amendment

«taking (contrast Sioux Nation of Indians v. United States,

220 Ct. Cl. ___, 601 F.2d 1157(1979)),6 or any argument

that the Termination Act was constitutionally invalid in

any respect. The entire claim is that the passage, enact-

ment, and implementation of the Termination Act (as

amended), pursuant to its terms, was a non-constitutional

breach of the trust which the United States, as a

governmental entity, owed to the Menominees under

various treaties and long-continued practice.’

n The trial judge assumed without discussion that there was jurisdiction over all

Indian claims for breach of trust, of whatever character, and made absolutely no

ee in his opinion or findings between the actions of Congress setting policy

and directing conduct and the conduct of executive official Congression

al policy and directives. epogensy te

* Certain of the individual claims ‘see note 2, supra) do present such claims of a

constitutional taking.

? There is no claim, and we do not think there could be, that the Termination Act

In deciding whether (or to what extent) Congress has

given us jurisdiction of such a suit, we,assume arguendo

and without in any way determining, first, that such a

trust relationship existed with respect to the Menominees;

second, that the trial judge correctly decided the underly-

ing facts and circumstances on which he based his ultimate

findings; and third, that the ultimate findings are correct.

Since we conclude that the court has no jurisdiction of at

least the bulk of this “basic” claim, we have no occasion to

review most of the findings. As for the few findings which

may have some bearing on the aspects of the separate

claims which still survive, we think it better not to consider

or adopt them, so that the separate claims can be evaluated

wholly afresh and apart from the trial judge’s basic opinion

(and the related findings) which in our view entertained

and upheld a general claim over which this court has at

this time no jurisdiction.

II.

We have twice recently upheld our jurisdiction over a

non-constitutional breach of trust claim by Indians. Mitch-

ell v. United States, 219 Ct. Cl. __, 591 F.2d 1300, cert.

granted, 99 S. Ct. 2880 (1979); Duncan v. United States, 220

Ct. Cl. ___, 597 F.2d 1337 (1979). But both cases involved

solely claims that the Interior Department had acted

improperly under Congressional legislation imposing trust

duties on that agency which it was said to have violated. In

neither instance was it claimed that the enactment of any

statute was itself a breach of trust. In Mitchell the Indians

accepted and relied on various statutes, primarily the

General Allotment Act, 25 U.S.C. §§ 331 et seq. (1976),

urging merely that the Interior Department had failed to

follow the requirements of those Acts. Likewise, in Duncan,

involving the termination of the Robinson Rancheria in

California, the plaintiffs relied squarely on the Rancheria

created a contract between the Menominees and the United States which was

breached by the later amendments or by the Interior Department in carrying out the

termination. See Klamath & Modoc Tribes v. United States. 193 Ct Cl. 670, 697, 436

F.2d 1008, 1022, cert. denied, 404 U.S. 950 (1971) (Klamath Termination Act did not

create a contract).

Act, Pub. L. No. 85-671, 72 Stat. 619 (1958), saying (as we

held) that the Secretary of the Interior had not abided by

the statutory requirements."

This is the first time we have confronted the separate

‘and distinct issue of whether 28 U.S.C. §§ 1491 and 1505

give us jurisdiction of a nonconstitutional breach of trust

claim for money—not because some federal! official con-

travened a governing statute or treaty—but because

Congress itself, in enacting a statute, violated (without

trenching on the Constitution) a general trust obligation

owed by the United States as a government to the Indians.

ITI,

The problem is whether 28 U.S.C. §§ 14919 and 1505!°

authorize us to consider that kind of monetary claim.

Congress could, of course, grant such consent if it wished. It

did so (at least in part) in section 2 of the Indian Claims

Commission Act, Pub.L. No. 726, ch. 959, 60 Stat. 1050, 25

U.S.C. § 70a (1976), which authorized the Commission to

hear (among other types) “claims based upon fair and

honorable dealings that are not recognized by any existing

rule of law or equity.” Under that broad rubric the

Commission (and this court on appeal) considered conten-

* All of the earlier Indian breach of trust cases decided by this court under our

general jurisdictional provisions ‘see Mitchell. supra, 591 F.2d at 1303; Duncan.

supra, 597 F.2d at 1345-46) also involved claims either that officials of the

Government had acted improperly under controlling statutes or treaties, or that

there had been a Fifth Amendment taking. Similarly, all the Supreme Court

decisions cited by plaintiffs, or of which we are aware, involved the same type of

claims

“ 28 USC. § 1491 provides in pertinent part:

“The Court of Claims shall have jurisdiction to render judgment upon any claim

against the United States founded either upon the Constitution, or any Act of

Congress, or any regulation of an executive department, or upon any express or

implied contract with the United States, or for liquidated or unliquidated damages in

cases not sounding in tort.”

28 USC. § 1505 provides:

“The Court of Claims shall have jurisdiction of any claim against the United States

accruing after August 13, 1946. in favor of any tribe, band. or other identifiable

group of American Indians residing within the territorial limits of the United States

or Alaska whenever such claim is one arising under the Constitution, laws or

treaties of the United States, or Executive orders of the Preisdent, or is one which

otherwise would be cognizable in the Court of Claims if the claimant were not an

Indian tribe, band or group.”

tions that treaties ratified by Congress or legislation passed

by it amounited to less than fair and honorable dealings, or

that Congress’s failure to act fell into thrat same class. See,

e.g., Oneida Tribe of Indians of Wisconsin v. United States,

165 Ct. Cl. 487, 496-97, 499-500, cert. denied, 379 U.S. 946

(1964); Seminole Nation of Oklahoma v. United States, 203

Ct. Cl. 637, 492 F.2d 811 (1974); United States v. Goshute

Tribe, 206 Ct. Cl. 401, 407-08, 512 F.2d 1398, 1400-01

(1975); United States v. Oneida Nation of New York, 217 Ct.

Cl. ___, 576 F.2d 870 (1978). In the two Sioux Nation cases,

the entire court agreed that an award could be made under

the “less-than-fair-and-honorable” provision for the acquis!-

tion by Congress of the Black Hills through an 1877

statute—the only disagreement was whether a constitu-

tional taking had occurred. See United States v. Sioux

Nation, 207 Ct. Cl. 234, 518 F.2d 1298, cert. denied, 423 U.S.

1016 (1975); Sioux Nation v. United States, 220 Ct. Cl. _—.,

601 F2d 1157 (1979), including the dissent of Bennett, J.1

But neither section 1491 nor section 1505 contains any

provisions comparable to the “fair and honorable dealings

clause or the clause countenancing revision of treaties, etc.

for fraud, unconscionable consideration, etc. (note 11,

supra). The predecessor of section 1505 was originally a

part of the Indian Claims Commission Act of (1946 and

Congress obviously knew that that new jurisdictional

provision for future litigation directly in this court was

different from and narrower than the very broad jurisdic-

tional provisions for the claims to be heard initally by the

Commission.!2 See Klamath and Modoc Tribes v. United

States, 174 Ct. Cl. 483, 486-90 (1966).

When we examine the words of sections 1491 and 1505

against the historical background of legislative consents-to-

suit by Indians in this court, we cannot find that Congress

has empowered us to hear and to determine nonconstitu-

nconstitutional claims on account of Congressional action

wait oa. aaa ee the Indian Claims Commission under clause (3) .

section 2, 25 U.S.C. § 70a: “[C]laims which would result if the treaties. contracts, =

agreements between the claimant and the United States were revised on the groun

of fraud, duress, unconscionable consideration. mutual or unilateral mistake.

whether of law or of fact, or any other ground cognizable by a court of equity.

12 Section 1505 was first enacted as section 24 of the Indian Claims Commission

Act, Pub.L. No. 726, ch. 959, 60 Stat. 1055.

tional claims that a fiduciary duty toward Indians has been

breached by the passage of legislation by the Congress

itself. We look first to the text of the jurisdictional statutes

(see notes 9 and 10, supra)

Section 1491: At this time there is no claim before us

founded on the Constitution. See Part I, supra. Accordingly,

the grant of jurisdiction over claims founded on the

Constitution is now irrelevant. Nor is the claim of breach of

trust we are considering “founded” upon an “Act of

Congress.” The cause of action is plainly not “founded”

upon the Termination Act in the sense that that legislation

is invoked as the source of plaintiffs’ rights; rather, the

statute is pointed to as breaching plaintiffs’ preexisting

rights said to flow from prior treaties or from the general

law of Indian relations. Neither is the claim we confront

today “founded” on “any regulation of an executive

department,” nor could it be in view of the enactment of

the Termination Act (whick would, of course, displace any

prior executive regulation). Pe--aps the early treaties on

which plaintiffs rely for their claim of a trust obligation

could possibly be deemed an “express or implied contract

with the United States” if bare language alone were to be

taken into account. But the general history of consents-to-

sue in this court (which we evaluate in detail infra)

counsels strongly against including within that category

Indian treaty provisions subsequently modified or displaced

by a valid Act of Congress such as the Termination Act.

The same is true for the provision for jurisdiction over

“liquidated or unliquidated damages in cases not sounding

in tort,” the least developed and least known of our kinds

of jurisdiction. For interpretation of that little-invoked

clause (as with the other parts of the Tucker Act), history

counts more than the dictionary in discovering the

Congressional purpose. See United States v. King, 395 U.S.

1, 5 (1969).

Section 1505: Everything we have said about the terms of

section 1491 applies as well to section 1505, which

substantially tracks section 1491 and has been construed to

cover the full ground of the latter. See Klamath and Modoc

Tribes v. United States, supra, 174 Ct. Cl. 483, 489-90

10a

(1966); Mitchell v. United States, supra, 219 Ct. + aN

591 F.2d 1300, 1302 n.10.

This review of the statutory texts may show that, if we

concentrated on the language alone, we could conceivably

interpret portions of sections 1491 and 1505!3 as supporting

the jurisdiction plaintiffs urge (and which the trial judge

assumed) for this nonconstitutional claim for breach of

trust occasioned by Congress’s passage of the Termination

Act. But the language is neither unambiguous nor exact,

and we are persuaded against that position by the

historical treatment of consents to Indians to sue the

sovereign in this court, as well as by the prevailing views

as to the power of Congress over Indian relationships

(where, as here, the Constitution is not involved).

There is, first of all, the accepted canon that consents to

sue the United States are not to be found where expressed

only equivocally. United States v. Testan, 424 U.S. 392, 399

(1976); United States v. King, 395 U'S. 1, 4 (1969). On the

precise issue now presented, we have nothing at all express

in the statutes but only some general and ordinary words

which can possibly be stretched to cover the claim, but

need not necessarily be so understood. In contrast, as we

have seen, Congress was much more wide-ranging, liberal,

and explicit in the words it used (for Indian Claims

Commission jurisdiction) in section 2 of the same Indian

Claims Commission Act which created the forerunner of

section 1505.

Second, it has also been established for at least seventy

years that Congress has the unilateral and plenary power

(to the extent that there is no violation of the Constitution,

including the Just Compensation Clause) to abrogate or

modify, by statute, a prior treaty with Indians. See Lone

Wolf v. Hitchcock, 187 U.S. 553 (1903); Choate v. Trapp, 224

U.S. 665, 670-71 (1912); Shoshone Tribe v. United States,

299 U.S. 476, 497 (1937); Delaware Tribal Business Commit-

tee v. Weeks, 430 U-S. 73, 84 (1977); Rosebud Sioux Tribe v.

Kneip, 430 U.S. 584, 587-88, 594, 598 (1977), Chambers,

Judicial Enforcement of the Federal Trust Responsibility to

Indians, 27 Stan. L. Rev. 1213, 1223-27 (1975).

14 Le.. “express or implied contract,” “liquidated or unliquidated damages in cases

not sounding in tort,” “treaties.”

lla

In the light of this principle, it is hard to believe—simply

by using “treaties” in section 1505 or “an express or

implied contract” in section 1491 or “any claim * * * for

liquidated or unliquidated damages in cases not sounding

‘in tort” in the same provision—that Congress envisaged

monetary suits in this court based on a claim that a valid,

constitutional!4 statute abrogating, modifying, or “breach-

ing” a prior Indian treaty was nevertheless a compensable

breach of trust or fiduciary duty. The concept that a valid

Act pertaining to Indians can be, in itself, a violation of

fiduciary duty, which is vindicable as a legal claim, was not

at all formed when the predecessors of section 1491 were

passed,!5 and in 1946 when section 1505 first became law

such a cause of action appears to have been deemed purely

“moral” (and redressable only before the Indian Claims

Commission under section 2, supra, or under a properly

worded special jurisdictional act).!6 It is, of course, common

ground that section 1505 blankets only legal, not purely

moral, claims. See Mitchell v. United States, supra, 219 Ct.

Cl. at ____, 591 F.2d at 1303; Navajo Tribe v. United States,

218 Ct. Cl. ___, 586 F.2d 192, 200-01 (1978), cert. denied, 99

S.Ct. 2163 (1979); Klamath and Modoc Tribes v. United

States, 174 Ct. Cl. 483, 487-90 (1966).

Third, in the days when Indians could sue in this court

only under special jurisdictional statutes, there was a

strong tradition that such a special act would not be

construed as allowing the court (or the Supreme Court on

appeal) to pass on the fairness or justice of an Act of

Congress, or of a treaty ratified by Congress, unless the

14 Including the absence of any duty to pay just compensation.

1S See W. Cowen, P. Nichols, M. Bennett, The United States Court of Claims—A

History. Part II ("Origin—Development—Jurisdiction, 1855-1978"), 216 Ct. Cl.

63-64, 69-70, 72, 73 (1978).

6 The legislative history of the predecessor of section 1505 speaks only of

wrongdoings by federal officials and does not mention a constitutional statute as

being the possible source of a compensable claim. See Michell v. United States, supra.

219 Ct. Cl. at _ __, 591 F.2d at 1303-04. There is a reference to the Indians being able

to sue on “any controversy with the Federal Government that may arise in the

future,” but this was said in the context that the Indian would thereafter have “the

same right as his white or black neighbor to secure a full and free hearing in the

Court of Claims * * *.” Since there are very few, if any, instances in which non-

Indians can claim in this court that a fully valid statute violates their rights, we

hardly think that the general reference to “any controversy with the Federal

Government” covers the present claim.

12a

language of the jurisdictional statute compelled that result.

For a court to pass upon the fairness, justice, good faith, or

propriety of a valid Congressional act was considered

unseemly, and an intrustion on the domain of the

legislative department. See United States v. M ille Lac

Band, 229 U.S. 498, 500 (1913); United States v. Choctaw

Nation, 179 U.S. 494, 532-35 (1900); United States v. Old

Settlers, 148 U.S. 427, 466, 468, 469 (1893); Sioux Tribe of

Indians v. United States, 97 Ct. Cl. 613, 663-65, 681-82,

684, 685 (1942), cert. denied, 318 U.S. 789 (1943); Chippewa

Indians v. United States, 88 Ct. Cl. 1, 45, aff'd on other

grounds, 307 U.S. 1 (1939); see also Menominee Tribe of

Indians v. United States, 101 Ct. Cl. 10, 21 (1944).

When Congress came to enact Section 1505 in 1946, to

control future Indian litigation in this court, it did not use

any words, or reveal any aim, to show that it wished to go

beyond this tradition (except where the Constitution was

involved). By contrast, it did make a deliberate effort to

extend as much as possible the jurisdiction of the Indian

Claims Commission over past wrongs, legal and moral. See

Klamath and Modoc Tribes v. United States, supra, 174 Ct

Cl. at 489.17

These considerations impel us to hold that sections 1491

and 1505, as now worded, do not authorize us to entertain

the nonconstitutional claim that the enactment of the

Termination Act of 1954 was a breach of trust by Congress

for which the plaintiffs can obtain monetary relief. We

think that, for us to consider such a claim, Congress would

have to be more definite and precise in granting us that

type of jurisdiction. This is our reading of the general

language of sections 1491 and 1505, in the light of the

historical background of Indian rights and Indian litigation

against the sovereign.

17 Klamath and Modoc Tribes quotes at length from the Congressman Jackson,

principal House sponsor of the Indian Claims Commission bill, who said:

“In order to make sure that we have included all possible claims within the

jurisdiction of the Commission, we have gone over the various special Indian

jurisdictional acts that Congress has passed in recent years and put together the |

various phrases that are used in these different acts. We might have condensed

this language but we though it best even at the risk of some duplication or

‘overlapping to make sure that we had covered every sort of case which Congress

has in recent years considered worthy of a hearing. It will be noted that some of

the categories refer to purely legal claims, while others refer to claims based on

equity and fair dealing * * *.” (92 Cong. Rec. 5312-13 (1946)}

13a

As shown by our opinions in Mitchell and Duncan (see

Part II, supra), we think that breaches of trust resulting

from the actions of officials of the Government in violation

of a valid treaty or statute are quite different, and within

our authority. For that type of breach of trust, we believe

that Congress has already granted consent to sue.'® But

when the valid acts of Congress itself are assailed as

unjust, unfair, in bad faith, or blind to the Indians’

interest—in a case not raising a constitutional claim—we

do not believe that Congress intended in sections 1491 or

1505 to repose that unusual authority, novel except for

Indian Claims Commission cases, in this court.!9

IV.

In 1973 Congress enacted the Menominee Restoration

Act, Pub. L. No. 93-197, 87 Stat. 770, 25 U.S.C. §§ 903-903f

(1976), which repealed the Termination Act and generally

restored the Menominee Tribe and reservation to trust

status. Plaintiffs cite this statute as a legislative recogni-

tion that the Termination Act was in derogation of the

United States’ fiduciary responsibilities to the tribe.

Whether or not this is so, the Restoration Act does not

grant this court any jurisdiction it would not have if the

Termination Act had been left unrepealed.

The legislative history of the restoration statute does

contain substantial material-reflecting adversely on the

passage of the Termination Act (see, e.g., S. Rep. No.

93-604, 93rd Cong., 1st Sess. 3 (1973); H. Rep. No. 93-572,

93rd Cong., 1st Sess. 3 (1973)), but there is nothing in the

\* In Mitchell and Duncan. (a) an Act. of Congress gave or confirmed a trust

relationship between the Federal Government and the Indians, (b) executive officials

were alleged to have acted contrary to this Congressional legislation and thus to

have breached the trust Congress established or recognized. and (c) the Indian

plaintiffs claimed that compensable damages flowed from these breaches of trust by

the officials. On those premises we held that we had jurisdiction under sections 1491

and 1505, and that this interpretation accorded with the revealed Congressional

purpose, as well as the prior decisions of the Supréme Court and this court. The same —

is true of Coast Indian Community v. United States, 213 Ct. Cl. 129, 152-56, 550 F.2d

639, 652-54 11977) (in which there was no challenge to jurisdiction).

1” When Congress provided for transfer of undecided Indian Claims Commission

cases to this court, it made express that this court's regular jurisdiction under

section 1505 was not broadened in any way. Act of March 30, 1972. Pub. L. No.

92-265. § 23. 86 Stat. 114, 115. 25 U.S.C. § 70v 11976).

l4a

1973 enactment remotely granting to or recognizing in the

Menominees any monetary claim against the United States

for the termination or its results, or extending this court’s

jurisdiction to cover such a claim. There is no such

provision in the text of the statute, nor can any such

inference be drawn. On the contrary, both committee

reports explicitly disavow any implication of a monetary

claim which some feared might arise from one of the

provisions of the Restoration Act. S. Rep. No. 93-604,

supra, at 6; H. Rep. No. 93-572, supra, at 4.20

The jurisdictional barrier against our appraisal of

Congress’s action in enacting the Termination Act covers

(a) any evaluation of Congressional motives or the interests

Congress was pursuing; (b) any alleged failure of Congress

to prepare the Menominees for termination, to make a full

and fair disclosure to them of all pertinent facts, to allow

further time before termination was effected, to give

greater assistance to the Indians in the termination

process, to reconsider the policy of termination, to adopt

modified legislation, or to determine before final amend-

ment of the Act whether the Tribe and its members were

ready to assume management and control of their property

and affairs; and (c) any alleged duress or pressure by

Congress or its members on the Menominees to obtain

their consent to termination. It follows that very little is

left of the “basic” claim now before us since that relates

almost entirely to the passage and enactment of the

Termination Act and its amendments. Plaintiffs assure us

repeatedly that we should not now consider any of the

specific claims (see note 2, supra), including the constitu-

tional contentions that plaintiffs are entitled to just

compensation because Congress imposed a post-termina-

tion sustained yield requirement on the Menominee forest

* The reports said: “Some concern was expressed that section 3ib) reinstating the

tribe and its members to all rights and privileges under any Federal treaty, statute

or otherwise which might have been lost or diminished by the termination act, might

be interpreted to be retroactive to 1954, thus giving rise to claims against the United

States. The Committee wishes to make clear that the subsection has no retroactive

effect and is not intended to be the basis for any claim against the United States.”

15a

or because the Interior Department included a 30-year

restraint on alienation in the deed of the forest land to

Menominee Enterprises, Inc.2! See Plaintiffs’ Brief In

Opposition, pp. 28, 31, 48, 62-63, 64, 66. We take plaintiffs

‘at their word, but add that these specific claims will, of

course, have to be decided within the limits of our

jurisdiction.

There is some suggestion, moreover, that, even if there is

no jurisdiction over the claim for breach of trust through

the passage of the Termination Act, the defendant is liable

because the Interior Department failed in its own obliga-

tions toward the Indians with respect to the termination

process. Most aspects of this contention fall with our

holding of lack of juris iction over Congress’s conduct in

passing the Act. That ruling cannot be evaded by saying

that, although we cannot examine the fairness or propriety

of the legislative process, we can hold the defendant liable

because the Interior Department did not itself undertake to

try to stop Congress or to advise or persuade it differently

or to do more than Congress required of it in order to

prepare the Menominees for the termination Congress had

ordered. Interior’s role cannot thus be separated from that

of Congress. Unless the Department violated the Constitu-

tion or some outstanding directive of Congress, the United

States cannot be held liable for Interior’s affirmative

actions or passive omissions with respect to the passage

and implementation of the Termination Act.

There is a small residue of argument that Interior did

violate the Termination Act.22 Plaintiffs attempt to enlarge

the Department’s obligations under the statute by pointing

to the opening section which declares that the general

purpose is “to provide for orderly termination of Federal

supervision” (emphasis added). 25 U.S.C. § 891 (1970). It is

hard to see in that routine descriptive phrase any directive

to the Secretary above and beyond the specific duties

2! They also tell us that three of the claims (forest mismanagement; sawmill

mismanagement: and power line right-of-way) are wholly unrelated to the

termination.

+2 We consider that we have jurisdiction of this type of claim. Mitchell v. United

States. supra: Duncan v. United States, supra. The discussion which follows centers

on whether plaintiffs have stated a proper claim.

16a

placed upon him by the subsequent sections of the

legislation (or the Constitution, or other legislation).

Neither the rest of the terms of the Act nor its legislative

history suggest that the Secretary was to have a wider or

more protective role under the Act than the specific

provisions gave him. Plaintiffs themselves characterize the

Act as part of an effort “to get out of the Indian

business”—and in somewhat of a hurry.

The only specific provisions of the Termination Act now

invoked by plaintiffs are the parts of 25 U.S.C. § 896

relating to the preparation and adoption of a plan for the

future control of the tribal property and service functions.

Section 896 first calls upon the Indians to formulate and

submit such a plan to the Secretary for his approval, and

also authorizes the Secretary “to provide such reasonable

assistance as may be requested by officials of the tribe in

the formulation of the plan.” The Secretary is to accept the

tribal plan if he finds that it “will treat with reasonable

equity all members” and “conforms to applicable Federal

and State law.” If the tribe failed to submit a plan within

the specified time, the Secretary had to prepare and submit

a plan to the Tribe.23 (The provisions for failure of the

28 Section 896 isection 7 of the original Termination Act, as amended) provided as

follows:

The tribe shall as soon as possible and in no event later than February 1, 1959,

formulate and submit to the Secretary a plan for the future control of the tribal

property and service functions now conducted by or under the supervision of the

United States, including but not limited to services in the fields of health,

education. welfare, credit, roads, and law and order, and for all other matters

involved in the withdrawal of Federal supervision. The Secretary is authorized to

provide such reasonable assistance as may be requested by officials of the tribe in

the formulation of the plan heretofore referred to, including necessary consulta-

tions with representatives of Federal departments and agencies, officials of the

State of Wisconsin and political subdivisions thereof, and members of the tribe.

The Secretary shall accept such tribal plan as the basis for the conveyance of the

tribal property if he finds that it will treat with reasonable equity all members on

the final roll of the tribe prepared pursuant to section 893 of this title, and that it

conforms to applicable Federal and State law. In the event the tribe fails to submit

a plan approvable under the terms of sections 891 to 902 of this title by February 1,

1959, the Secretary shall cause such a plan to be prepared and submitted to the

tribe within three months thereafter. The tribe shall thereafter have three months

within which to accept the plan of the Secretary or to submit to the Secretary

tribal proposals for modification. If the Menominee Tribe and the Secretary cannot

agree upon a plan within the aforementioned six-month period, or if they agree

upon a plan within such period and the tribal corporation and voting trust

17a

Menominees to submit a plan are immaterial here since

they did submit a plan in time.)

The only possible violation by Interior of Section 896,

which placed the initial burden of preparing and formulat-

ing the plan on the tribe, would be in the Secretary’s

improper approval of the plan and any failure to provide

“reasonable assistance as may be requested by officials of

the tribe in the formulation of the plan” (emphasis added).

There appears to be no argument that the Secretary’s

approval of the plan failed to comply with the statutory

standard, but we leave that issue open.24 As for the

provision for reasonable assistance, we do not understand

that any request by the Tribe for reasonable assistance (of

the kind authorized by the statute) was turned down or left

unsatisfied. However, we leave that question open, also, if

plaintiffs wish to pursue it further. In view of the precise

wording of the Secretary’s authority as to assistance, we

cannot agree that Interior was required to proffer advice or

assistance not sought by the Menominees (who were

represented by skilled attorneys) and perhaps not wanted.

Because plaintiffs have rolled both Congressional action

(and inaction) and departmental action (and inaction) into

one inseparable claim of breach of trust, we are not sure of

the extent to which plaintiffs are complaining that Interior

violated, in connection*with the termination, statutes other

than the Termination Act. For instance, plaintiffs’ brief

contemplated by the plan are not established prior to March 1, 1961, the Secretary

shall transfer the tribal property to a trustee of his choice for the management or

disposition for the benefit of the Menominee Tribe. The responsibility of the

United States to furnish all such supervision and services to the tribe and to the

members thereof, because of their status as Indians, shall cease on April 30, 1961,

or on such earlier date as may be agreed upon by the tribe and the Secretary. The

plan shall contain provision for protection of the forest on a sustained yield basis

and for the protection of the water, soil, fish and wildlife. To the extent necessary,

the plan shall provide for such terms of transfer pursuant to section 897 of this

title, by trust or otherwise, as shall insure the continued fulfillment of the plan.

The Secretary, after approving the plan, shall cause the plan to be published in the

Federal Register. The sustained yield management requirement contained in

sections 891 to 902 of this title, and the possible selection of a trustee in the event

of a tribal planning default. shall not be construed by any court to impose a

financial liability on the United States.

24 We do not agree with plaintiffs’ apparent contention that the Termination Act

gave the Secretary general authority to disapprove the plan if he thought the

Menominees unprepared for termination, or that he could delay termination on that

ground. Section 896 establishes a specific time-table envisaging speedy completion of

the process.

ves

18a

refers to loss of the Menominees’ hospital shortly after

termination in 1961 because the Bureau of Indian Affairs

had failed, in remodeling the hospital with the

Menominees’ own funds, to take account of Wisconsin state

structural requirements, although the Bureau was well

aware that termination was coming and that such state

demands would have to be met. If this contention is

factually correct, it might prove to be a violation of other

legislation giving the Bureau control over the Indians’

funds. There is also a claim that the Bureau drastically

reduced its reservation staff after passage of the Termina-

tion Act but before actual termination. This charge might

be sustained, if it turned out that this alleged drastic

reduction was not a proportionate cut due to a general

reduction-in-force in all Bureau functions or services, but a

unique, premature withdrawal by the Bureau (on its own)

of services available to the Menominees simply because the

Bureau knew they were going to be terminated some time

later.25

We leave open issues of this type because we are not

clear as to their alleged foundation. The controlling

standard for further proceedings will be that the following

types of claim may still be litigated: (a) claims said to arise

under the Constitution; (b) claims that the Interior

Department violated the Termination Act in the respects

left open by the preceding discussion in this opinion; (c)

claims that the Interior Department violated other statutes

in its dealings with the Menominees; and (d) the specific

claims set forth in note 2, supra, insofar as they do not rest

on Congress’s (or the Interior Department’s) alleged breach

of fiduciary duty through the passage and enactment of the

Termination Act.26

25 To the extent this claim rests on a failure or refusal of Congress to appropriate

the funds plaintiffs deem sufficient, we think that the claim is beyond this court's

jurisdiction for the reasons already given. Cf. Klamath and Modoc Tribes v. United

States, 193 Ct. Cl. 670, 696-97, 436 F.2d 1008, 1021-22, cert. denied, 404 U.S. 950

(1971); Oneida Tribe of Indians of Wisconsin v. United States, 165 Ct. Cl. 487.

499-500, cert. denied, 379 U.S. 946 (1964) (Indian Claims Commission case).

26 Because of our disposition, it is unnecessary to reach defendant's point as to the

statute of limitations. That issue will also remain open for further litigation if

defendant wishes to press it.

19a

CONCLUSION OF LAW

The trial judge’s opinion and findings are vacated and

the case is returned to him for further proceedings in

‘conformity with the foregoing opinion. The petition in No.

134-67 is dismissed to the extent indicated in the foregoing

opinion.

eA RE Re A Rl Le em

20a

APPENDIX B

IN THE

UNITED STATES COURT OF CLAIMS

TRIAL DIVISION

No. 134-67 (Basic)

(Filed: July 19, 1978)

THE MENOMINEE TRIBE OF INDIANS,

suing on its own behalf and as the representa-

tive of its members, or their successors, as a

class; and MENOMINEE ENTERPRISES,

INC., suing on its own behalf and as the repre-

sentative of its stockholders, or their successors,

as a class; and GORDON DICKIE, JAMES

FRECHETTE, JERRY GRIGNON, and

GEORGE KENOTE, each suing on his own

behalf and as the representative of the members

of the Menominee Tribe of Indians, or their

successors, as a class, and as the representative

of the stockholders of Menominee Enterprises,

Inc., or their successom, as a class; and FIRST

WISCONSIN TRUST COMPANY, suing as

trustee on behalf of all the beneficiaries, or

their successors, of the Menominee Assistance

Trust established pursuant to the Menominee

Termination Act of 1954, 25 U.S.C. §§

891-902

THE UNITED STATES

I I ER OE EO LT

ee ee LL ne eT ee A a —

=o oe -

2la

Indians: termination of federal supervision and protec-

tion; history, background and validity of termination

policy; trust or fiduciary relationship existing between

the parties; duties and responsibilities of trustee; breach

of fiduciary duty in termination of federal supervision

and protection without adequate preparation of, nor

effective consent by the subjects of tlie trust; coercion,

and capacity of cestut que trust or ward to consent to

termination of trust relationship; imposition of restric-

tions on tribal property.

Angelo A. Iadarola, attorney of record, for plaintiff.

Frances L. Horn, R. Anthony Rogers, Philip A. Nacke,

Wilkinson, Cragun & Barker, of counsel.

Richard L. Beal, with whom was Assistant Attorney

General Kent Frizzell, for defendant.

OPINION*

SPECTOR, Trial Judge: This is the basic opinion

underlying a large and complex group of cases! each in-

volving a separate claim.” All of the cases are predicated

upon a fifth amendment taking without just compensa-

tion, and/or breach of a fiduciary duty by defendant.

The basic opinion herein deals with the general back-

*The trial judge’s recommended decision and conclusion of law

are submitted in accordance with Rule 134(h).

The plaintiffs are composed of the following: The Menominee

Tribe of Indians, Menominee Enterprises, Inc., four named indi-

viduals: Gordon Dickie, James Frechette, Jerry Grignon and

George Kenote, and the First Wisconsin Trust Company appointed

as trustee under the Menominee Assistance Trust to protect the

rights of members of the tribe less than 18 years of age, non

compos mentis, or otherwise incompetent.

2The original petition included claims bearing the following

descriptions: Menominee Deed (Forest) Restrictions; Forest

[footnote continued]

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OO yee ras

=r _- ee - ee wee ee

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22a

ground and history of the Menominee Termination Act,

the preexisting relationship between the parties, and the

legal consequences attendant upon termination of that

relationship.

I. General Historical Background

An earlier case involving the Menominee Indians pro-

vides an authoritative summary of the history of the tribe

and of its lands. It illustrates that they have lived “‘as a

tribe since time immemorial in Wisconsin” and that they

had acknowledged themselves to be under the protection

of the United States as early as 1817.4

Thereafter, in a series of treaties between 1825 and

1848, the Menominee ceded their entire land holdings to

Management; Mill Mismanagement; Highway Rights of Way; Power

Line Right of Way; Public Sewerage System; Soo-Line Right of

Way (Railroad); Termination Expenses; and Mismanagement of

- Tribal Funds. Plaintitr. have since abandoned the claim entitled

Soo-Line Right ofWay and added one entitled Loss of Tax Exemp-

tion. Pursuant to request of counsel, an order was issued May 21,

1973 separating the claims into nine separate dockets as follows:

Deed Restrictions No. 134-67A; Forest Mismanagement No.

134-67B; Mill Mismanagement No. 134-67C; Highway Rights of

Way No. 134-67D; Termination Expenses No. 134-67E; Loss of

Tax Exemption No. 134-67F; Power Line Rights of Way No.

134-67G; Public Sewerage System No. 134-67H; Mismanagement

of Tribal Funds No. 134-671 (severed for later trial).

- 3Menominee Tribe of Indians, et al. v. United States, 179 Ct.

Cl. 496, 501-02, 388 F.2d 998, 1001 (1967) aff'd 391 U.S. 404

(1968). This decision also holds that the Menominee Tribe of

Indians continued to exist as a tribal entity after the passage of

the Menominee Termination Act (note 8, infra) and constituted a

tribe, band or other identifiable group of American Indians for the

purpose of suit in this court.

4Treaty of St. Louis, 7 Stat. 153 (1817).

23a

the United States in exchange for about 600,000 acres

west of the Mississippi River.? It had been agreed in the

last of these treaties that the Menominees could inspect

the western land before moving to it. When they found it

unsatisfactory and refused to move, they were ceded

276,480 acres of land along the upper Wolf River in

northeastern Wisconsin in exchange for the 600,000

western acres.© This reservation was conveyed to the

Menominees “for a home, to be held as Indian lands are

held. * * *” It is about 95 percent forested.

The last described land’ thereafter remained intact,

unallotied, and wholly-owned by the tribe until conveyed

by the Secretary of the Interior in 1961 to Menominee

Enterprises, Inc., as later described. Conveyance was

pursuant to the Menominee Termination Act® which is at

the core of this case. Prior to termination of federal

supervision, fee title to the Menominee Reservation had

been held by the United States in trust for the benefit of

the Menominees, whose affairs and properties were man-

aged in the manner typical of fiduciary relationships.

5 First by the Treaties of Prairie des Chiens, 7 Stat. 272 (1825)

and Butte des Morts, 7 Stat. 303 (1827), they settled certain

boundary questions. Then by the Treaty of Washington, 7 Stat.

342 (1831) and 7 Stat. 405 (1832) they ceded 3 million acres to

the United States. Thereafter, they ceded about 4,184,000 acres

to the United States by the Treaty of Cedar Point, 7 Stat. 506

(1836) and finally in 1848 by the Treaty of Lake Pow-aw-hay-

kon-nay, 9 Stat. 952, ceded the balance of their land consisting of

approximately 4 million acres. This last cession was in exchange

for the approximately 600,000 acres west of the Mississippi re-

ferred to in the text.

©The exchange was legalized by the Treaty of Wolf River, 10

Stat. 1064-65 (1854), amending the 1848 Treaty of Lake Pow-

aw-hay-kon-nay.

7Except for about 46,000 acres ceded by the Menominees in

1856, 11 Stat. 679, for use by the New York Indians.

825 U.S.C. §§ 891-902.

errr er

24a

II. History and Background of the Menominee

Termination Act

The history underlying the Menominee Termina-

tion Act is of singular importance to these cases be-

cause of the claims predicated in whole or in part on

breach of the Government’s fiduciary duty in its

relationship to the tribe, and its acts and omissions in

the course of terminating that relationship.

In 1947 an unrelated investigation was initiated by

the Senate Commerce Committee on Civil Service to

consider how the personnel and expenses of the Indian

office could be reduced. It was in the course of that

investigation that the Acting Commissioner of Indian

Affairs presented a program designed to achieve gradual

withdrawal of federal control and supervision over

Indian affairs by his office. Taking such factors into

consideration as a tribe’s degree of acculturation,’

economic conditioning, willingness to dispense with

federal aid, and the willingness and ability of the state

within which the tribe was located to assume certain

responsibilities, the Acting Commissioner proposed the

early cessation of federal supervision over 10 tribes.

The Menominee was one of those tribes. This ap-

praisal and proposal by the Bureau of Indian Affairs

was made without prior study or investigation. Unre-

butted expert testimony presented by plaintiffs at

trial established that the Menominee Tribe did not

9 Acculturation is defined in Webster’s New Collegiate Dic-

tionary (1961 ed.) as: “‘The process of absorbing new cultural

traits, especially by transference from another group or people.”

Acting Commissioner Zimmerman considered the ‘‘acculturation”’

test to include such factors as admixture of white blood, percent-

age of illiteracy, business ability, acceptance of white institutions,

and acceptance of the Indians by whites in the community.

25a

meet any of the criteria for termination proposed by

the Acting Commissioner of Indian Affairs.

Although a bill was introduced later in 1947 to

terminate federal responsibility over the Menominee

Reservation, it failed of passage on that occasion and

it was not until some years later that termination

again became an issue in Congress..° One of the

events which precipated a renewal of interest in

termination was the settlement in July 1951 of a suit

which had been brought 15 years earlier by the tribe.

The suit had covered a variety of matters including the

ownership of certain swamp lands within the Meno-

minee Reservation, also claimed by the State of Wis-

consin; the Government’s mismanagement of tribal

funds; the mismanagement of the tribal forest; and the

mismanagement of the tribal mills enterprise. It re-

sulted in judgment in favor of the Menominees in the

amount of $8,500,000,”

Per capita distribution of the award (or even part of

the award) was, however, frustrated by the jurisdic-

tional act under which the claims had been brought.!?

Individual members of the tribe urgently needed and

wanted their individual shares, and as a result the tribe

sought congressional authorization for a per capita

payment to each member. But the Department of the

106n August 1, 1953, H.R. Con. Res. 108, 67 Stat. 3132

declared “termination” to be Government policy “at the earliest

possible time.”” The Menominees were listed among the Indians

covered by the resolution. It was declared to be the sense of Con-

gress that all offices of the Bureau of Indian Affairs, the primary

purpose of which was to serve any Indians freed from federal sup-

ervision, should be abolished. The Secretary of the Interior was

admonished to report not later than January 1, 1954 “his recom-

mendations for such legislation as, in his judgment may be neces-

sary to accomplish the purposes of this resolution.”

1] yenominee Tribe v. United States, 119 Ct. Cl. 832 (1951).

12 section 7 of the Act of September 3, 1935, 49 Stat. 1085.

26a

Interior refused to recommend passage of any per

capita bill until a comprehensive termination plan had

been completed.!® As a consequence of a clear indica-

tion from Indian Bureau officials that Congress was

seriously moving towards the complete elimination of

the Indian Bureau, coupled with the inability of the

tribe to secure a per capita payment without a com-

pleted and comprehensive termination plan, the mem-

bers were under strong and immediate economic pres-

sure to develop a program directed toward termination

of federal trusteeship, whether they wanted it or not.

Accordingly, in January 1953, the General Council of

the Menominees adopted a resolution asking the

Federal Government to authorize the transfer to the

tribe of supervision of various matters then under

Government control. A month later, then Congressman

Melvin A. Laird introduced H.R. 2828, which author-

ized a per capita payment of $1,500 to the Menorainees.

The bill passed the House, but was delayed in the In-

dian Subcommittee of the Senate Committee on

Interior and Insular Affairs by its chairman, Senator

Arthur V. Watkins. Chairman Watkins wanted a

commitment from the tribe that it would agree to

complete withdrawal of federal supervision.

As_ hereinafter summarized, Congressman Laird’s

simple proposal for a $1,500 per capita payment was

eventually converted into the Menominee Termina-

tion Act, largely through the efforts of Senator Wat-

kins. Back in 1947, he had held subcommittee hearings

on the withdrawal of federal services and protection

1311.R. 7104 and S. 2969, providing for a $1,000 per capita

payment had been introduced in Congress, but they failed to pass

due in part to lack of support from the Department of the Interior.

27a

from Indian tribes, and_he had developed a strong and

continuing position in favor of termination. His views

were forcefully expressed at the subcommittee hearings

which he chaired. Senator Watkins equated termina-

tion with “freeing the Indians” and he referred to the

termination program as a “freedom program.” The

Senator also characterized termination of federal

supervision as “Removal of Restrictions Over Indian

Property and Person.”!* Under his leadership, the

Laird bill was rewritten essentially into a termina-

tion bill, the proposed revisions being worked out

with the Bureau of Indian Affairs.

The Senator was invited to explain his views regarding

termination to the tribe, and in June 1953 a meeting of

the Menominee General Council was held for that pur-

pose. This meeting is cited by plaintiffs as indicative of

the degree of coercion and influence exerted upon the

tribe by the Government, and specifically by Senator

Watkins, in an effort to persuade its members to accept

termination of federal supervision. The minutes of the

June 20th meeting clearly show that Senator Watkins

was adamant in his view that termination was the best

policy for all concerned, and that the Federal Govern-

ment had to extricate itself from involvement in Indian

affairs.

The earlier mentioned recovery of $8,500,000 by the

tribe in its suit against the United States, served only to

strengthen Senator Watkins’ position that “apparently

the Government has done such a bad job that it wants

out of the business.” The $1,500 per capita payment,

already approved by the House, was interwoven with

14 a5 Jater illustrated by the ‘Menominee Deed Restrictions”

case (No. 134-67A, note 2 supra), that claim is predicated on the

reimposition of restrictions on plaintiffs’ property, but under state

rather than federal supervision following termination of the federal

responsibility.

28a

termination to such an extent that in order for the indi-

vidual members to receive payment from their own tribal

funds, they had to agree to accept termination. The

Senator made it clear that tribal members would be de-

nied the $1,500 per capital distribution unless they

agreed to full and unqualified elimination of federal pro-

tection, services and privileges, and took their place in

the Wisconsin state governmental system on a full and

equal basis with non-Indians. He stated that it was his

objective to get the Government out of the Indian

business. About the same time similar representa-

tions were made to tribal representatives in the course

of a meeting at the Department of the Interior.

Following Senator Watkins’ speech, the Menominee

men and woman present at the council meeting voted

169 to 5 (in a standing vote) to accept the principle of

termination. No plan of any kind nor any specifications

for termination had been presented to them, nor had

they been advised of the many personal, economic and

political consequences which would flow from termina-

tion. It had been made clear, however, that the $1,500

per capita distribution which they needed and wanted

was inextricably linked to termination and that a vote

against termination constituted a vote against the per

capita distribution.

Notwithstanding the vote in favor of that resolu-

tion, it cannot be regarded as an indication that the

tribe favored the concept of termination. On the con-

trary, the record indicates that the vote was simply a

product of the tribal members’ urgent need and desire for

the per capita payment. The debate which took place

prior to the vote illustrates that members were con-

vinced that they could obtain approval of the per capita

payment only by voting in favor of the resolution.

Evaluated in light of the atmosphere in which the vote

29a

was taken, it evidenced anything but an approval of the

termination proposal. Thereafter on July 15, 1953, the

Senate Committee on Interior and Insular Affairs amen-

ded the Laird bill by changing the main thrust of the bill

from one authorizing a per capita distribution, to one

providing “for orderly termination of federal supervision

over the property and members of the Menominee Indian

Tribe of Wisconsin.”!® The $1,500 per capital distri-

bution which had been the tribe’s initial and sole interest,

was included almost incidentally as section 6 of a ter-

mination bill.

Two days after the Watkins amendment, a special

meeting of the Menominee Advisory Council was called.

The chairman had become alarmed upon learning of all

the implications of the Watkins bill and had conveyed

his concern to the membership, urging all to attend. At

an exceptionally well-attended meeting, the question

presented was: If you favor rejection of termination now

even though it means that you will not receive a per

capita payment from the tribal funds, please stand. One

hundred ninety-seven stood, and none opposed rejection

of termination.!© However, this vote at the tribal council

meeting had no appreciable effect on the Congress. The

amended bill passed the Senate on July 24, 1953.

On March 10, 1954, the Joint Committee on Indian

Affairs met on the question of Menominee termination

and conducted 3 days’ of hearings.!’ In conference

following the hearings it was the Watkins bill which was

155. Rep. No. 590, 83d Cong., Ist Sess. (1953).

Gata meeting of the Advisory Council only members of the

council can register an official vote, although tribal members in

attendance may be asked to register their vote so that the council

can be aware of their opinion, and be guided accordingly.

170n the third day, Senator Watkins was the only one present

on behalf of the joint subcommittee.

30a

essentially adopted. Although the House rejected the

conference report and although further conferences were

required, the bill which eventually reached the Congress

was the Watkins bill, with a modification of the time

schedule for final withdrawal of federal services. This

was the bill which was eventually enacted as the Meno-

minee Termination Act.'®

Briefly summarized, the Act closed the rolls of the

Menominee Tribe as of the date of its enactment; author-

ized a $1,500 per capita distribution to each enrolled

member; authorized the tribe to retain at its own expense

(under contracts approved by the Secretary) the services

of management specialists to assist in studies, recommen-

dations and reports to carry out the terms of the Act, by

December 31, 1957; required the tribe to prepare a plan

for future control of tribal property and service func-

tions on the reservation; declared that (unless an earlier

date was agreed upon) the responsibility of the United

States on the reservation would terminate December 31,

1958; provided for transfer on that date to the tribe of

all property theretofore held by the Government in

trust for the tribe; exempted the initial distribution from

federal and state income taxes; provided that with the

transfer of tribal property, all federal services would

cease and all federal laws affecting Indians would cease

to be applicable to the Menominees who would thereafter

be subject to state laws; and provided that the interests

of minors and legal incompetents were to be protected

by the Secretary by such means as he deemed adequate.

Subsequently, the Act was amended on four separate

occasions, first to authorize reimbursement to the tribe

for funds expended for management specialists, tax

18public Law No. 83-399, June 17, 1954; see note 8 supra.

3la

consultants and others retained to assist in carrying out

the purposes of the Act;!9 then to require a final tribal

plan to be formulated and submitted for approval by

December 31, 1957, said plan to provide for protection

of the forest on a sustained yield basis, and assure pro-

tection of the water, soil and wildlife;”? then to postpone

the date for submission of a tribal plan from December

31, 1957 to February 1, 1959, and the final termination

date from December 31, 1958 to December 31, 1960,

and to provide further that upon failure to submit a

tribal plan by February 1, 1959, the Secretary of the

Interior could cause such a plan to be prepared, and

authorizing him to transfer tribal property to a trustee

of his choice for ‘‘management or disposition” for the

benefit of the tribe;*! and finally to extend the termina-

tion date to April 30, 1961, provided that the Secretary

was required to transfer tribal property to a trustee of

his choice on March 1, 1961 if a tribal corporation was

not functioning by that date.”

As required by Section 7 of the Act, the Menominee

Tribe had submitted its plan to the Secretary of the

Interior on January 26, 1959, contingent upon requisite

action by the Wisconsin State Legislature. State action

19 act of July 14, 1956, 70 Stat. 544.

201dem, 70 Stat. 549. The Act stated in this regard: “The

sustained yield management requirement contained in this Act

* * * shall not be construed by any court to impose a financial

liability on the United States.’’ The intent of the quoted sentence

is an issue in one of the subsequent related cases.

21 act of July 2, 1958, 72 Stat. 290. This amendment also

appropriated a sum to reimburse the tribe in part for its expen-

ditures in carrying out the purposes of the Act, and for half such

expenditures (not exceeding $275,000) thereafter.

_ *2 act of September 8, 1960, 74 Stat. 867. Actual termina-

tion of federal supervision was accomplished by Proclamation of

the Secretary of the Interior on April 29, 1961.

32a

was required because one of the features of the plan

could be implemented only by state legislation, namely,

the creation of Menominee County, Wisconsin, out of

the Menominee Reservation. Under the plan, the Meno-

minee Reservation was to become both Menominee

County and the Town of Menominee within the State of

Wisconsin, with some town and county officials serving

in the same capacity for both governmental entities.

Menominee County was to be attached to adjacent

Shawano County for judicial functions, and to the office

and functions of Shawano’s Superintendent of Schools.

The plan submitted was finally approved some 2 years

later, and on April 29, 1961, it was published in the

Federal Register.”

A Wisconsin corporation, Menominee Enterprises, Inc.

(MEI) was incorporated under state laws to accept title

to and manage all property and assets of the Menominee

Tribe, the stock of MEI to be held and managed by a

voting trust for the benefit of all stockholders issued

voting trust certificates. A trust certificate representing

100 shares of stock was issued to each of the 3,270

enrolled Menominees,”* except that certificates of minors

and/or incompetents were issued to the First Wisconsin

Trust Company (one of the plaintiffs herein) to be held

for their benefit. Each enrolled member was also to be

given a $3,000 income bond which could be used for the

purchase of a homestead or farm property from MEI.

The bonds could not be sold for a 3-year period, and

at the end of that time MEI had an option to meet

23The difficulties encountered and conditions imposed in

working out the plan with the requisite state approval, are detailed

later in the opinion. Also, see note 14 supra.

24 45 shown on the final membership roll, approved and pub-

lished in the Federal Register pursuant to Section 3 of the Act.

33a

bona fide offers. MEI was governed by its board of

directors, consisting of nine members, at least four of

whom were to be members of the Menominee Tribe.

On April 26, 1961, the Secretary of the Interior trans-

ferred to MEI, title to all real property theretofore held

in trust by the Government for the Menominees. One of

the amendments to the Act” mandated a plan providing

for sustained yield management of the tribal forest, as

did a corresponding and specific state statute conditioning

a special method of taxation of these forest lands upon a

sustained yield restriction imposed by federal law.

Accordingly, the deed transferring the Menominee

Forest lands to MEI contained the following restrictive

language:

***THE PARTIES HERETO MUTUALLY COVE-

NANT and agree for the benefit of the State of

Wisconsin as follows:

1. That the lands conveyed hereby shall be

operated on a sustained yield basis until released

therefrom under the laws of Wisconsin or by act of

Congress.

At the insistence of the State of Wisconsin, the deed

contained the following additional restriction:

2. That for a period of 30 years commencing with

the date of this deed tht ownership of lands con-

veyed hereby shall not be transferred, nor shall

such lands be encumbered without the prior con-

sent of the State Conservation Commission of

Wisconsin and approval of the Governor of Wiscon-

sin unless released from sustained-yield basis under

25 see note 20 supra.

26 These provisions are the bases for the ‘Menominee Deed

(Forest) Restrictions” claim mentioned at notes 2 and 14 supra.

AP e e aee

34a

III. Opposition of the Menominees to Termination

The commencement and completion of the above-

described proceedings to terminate all federal super-

vision over the Menominees is attacked herein as a

fundamental breach of a fiduciary duty owed by

defendant to plaintiffs. Plaintiffs further assert that

any apparent consent to termination on the part of

the tribe or its members was procured by coercion.

The circumstances preceding termination have been

briefly recited above in tracing the history and back-

ground of the Menominee Termination Act. They are

further elaborated upon in this section of the opinion.

Plaintiffs cite the Senator Watkins meeting with the

General Council, at which the Senator insisted on

combining termination with the per capita payment

the tribal members individually’ needed and wanted.?’

Other evidence of record supports a finding that no

effective consent to termination was ever given by the

tribe. In fact, the record indicates that most tribal

members were opposed to termination. Congressman

Henry S. Reuss of Wisconsin testified at subcommittee

hearings that:

*** On several occasions the Tribe was told by

representatives of the Federal Government that

unless they agreed to termination on the Federal

Government’s terms, they could not have the

27At that meeting in June 1953, the Senator stated, inter alia:

“You had a just complaint and you brought suit against the United

States, and one of the complaints was that the United States mis-

managed your lands and property to the extent that you suffered

damages in the amount of $8,500,000; * * *

{I]t would be good to get rid of Uncle Sam because he

cannot possibly do the job.”

35a

$1,500 made available to them and to their credit in

the U.S. Treasury.”®

Other concerned Government officials and_ social

scientists had similariy observed and drawn attention to

the strong opposition of the Menominees to termina-

tion. The Indian Bureau’s superintendent for the reserva-

tion reported in letters to the Commissioner of Indian

Affairs:

***(T] he Menominees, or at least their leaders, are

violently opposed to withdrawal and have repeatedly

stated in meetings “[t] he Government ~..d Congress

want withdrawal, now let them do it as we don’t

want any part of it.

He also stated that: “I question very much whether

we are going to be able to ‘Sell’ the Menominees on the

Withdrawal Program.” The Bureau’s Program and Ad-

ministrative Officer similarly reported that:

*** We are exoeriencing non-acceptance, resistance

and a considerable bewilderment, irritation and con-

flict among the Menominee people. *** Almost no

one wants withdrawal and most are seriously con-

fused.

The Chairman of the Menominee Advisory Council wrote

that “[w]e all know that there will be a movement ***

to ask the new Federal administration and the Congress

to reconsider the advisability of termination.”

Dr. Gary Orfield, a political sci@ntist, wrote and

testified at congressional hearings that Senator Watkins

had secured passage of a harsh termination bill and that

28 He cites the June 5, 1953 meeting in the office of the Secre-

tary of the Interior, and the June 20, 1953 meeting on the reserva-

tion with Senator Watkins, Chairman of the Senate Subcommittee

on Indian Affairs. Wisconsin State Senator William F. Trinke also

expressed the opinion ‘** * * that termination was procured by

coercion.”’

36a

no one in the tribe had the faintest idea of the implica-

tions of termination. He testified:

The BIA made no explanation of the context within

which the tribe had voted. The decision of 200

people (actually, only 174) who needed money,

and who were told that termination was coming

anyway, and who hadn’t the least understaning of

the implications of termination, was taken as the

considered judgment of the entire tribe. *** There

is no evidence that the majority of the Menominee

people favored termination at any time. *** The

termination act was based on a series of false as-

sumptions.

Dr. David Ames, an anthropologist sent to the reserva-

tion by the State of Wisconsin, Dr. Robert B. Edgerton

who spent the summer of 1959 on the reservation, and

Dr. Verne F. Ray, anthropologist and ethnohistorian,

were all of the same opinion. In 1958, the Secretary of

the Interior declared that no tribe would be terminated

unless a clear majority of its members agreed. He also

noted that a clear majority of the Menominee Indians

neither accepts nor understands termination and he

queried how it was possible for termination to come to

an Indian people without a tribal referendum.

Although the opposition of the Menominee Tribe

appeared at times to be directed more toward the short

time frame in ‘which it was to be accomplished than to-

ward the concept of termination itself, it is clear from the

record that the members were fundamentally opposed.

That opposition was effectively neutralized by the

statements and actions of Senator Watkins; by the need

of the Menominees for the per capita distribution; by

misunderstandings as to the full implications of termina-

tion; and by the innocent conviction that if termination

when tried proved undesirable, it would be repealed.

37a

Later, when the character and practical implications

of termination came to be better understood, tribal

opposition intensified. The feeling against termination

was so strong in 1960 that the Menominees repudiated

their leaders and charged them with the failure to stop

termination and retum the tribe to federal supervision. A

petition was circulated and signed by 600 members

seeking outright repeal of the Termination Act. Many

members reacted by boycotting tribal meetings because

non-attendance had been a traditional expression of

negative opinion.

The State of Wisconsin was also strongly opposed to

termination, and encouraged and supported the Meno-

minees in their opposition, contending that an appearance

of tribal consent had been obtained by duress. Perhaps

the clearest indication of the prevailing mood of the

Menominees is a resolution passed by the State of Wis-

consin shortly before the final termination deadline,

which stated:

RESOLVED BY THE SENATE (the Assembly

concurring), that the legislature of the State of

Wisconsin requests the Congress of the United

States to repeal or amend Public Law 399 *** so

as to retain and continue indefinitely federal super-

vision *** until such time as the Menominee Indian

tribe has achieved a status comparable and equal to

the average citizen of its environs *** and until the

tribe has initiated a request for termination of

tribal status and such request has been approved by

an official vote of the enrolled members of the

tribe. *** [Emphasis supplied. ] |

Viewed as a whole, the record confirms that the

Menominee Tribe did not voluntarily consent to the

implementation of a policy of termination. Rather, the

plaintiffs’ eventual acquiesence was a result of their desire

SS eA I ieee i a See ae

38a

to obtain the sorely needed per capita payment, coupled

with the sense of resignation that termination was inevi-

table regardless of what position the tribe took, In order

to make some contribution to the form that termination

would take, rather than have some other body do all the

necessary planning, the tribe appeared to be resigned to

termination. |

It is concluded on this record that the tribe was not

in favor of termination, and did not voluntarily consent

to its implementation.

IV. Inadequacy of Measures Taken to Prepare the

Menominees for Termination and Management

of Their Own Affairs

Plaintiffs further contend that the tribe was not

adequately prepared for the consequences of termination,

and that defendant failed to take necessary steps to

remedy that condition. The entire burden of securing

and evaluating studies deemed necessary for implemen-

tation of termination was placed on the uncertain and

inexperienced tribal members who were themselves the

subjects of the proposal and of the necessary studies.

Furthermore, the Act initially had required that payments

for the studies would not be made entirely from the tribal

funds, as made available by the Secretary,’ and this also

had an inhibiting effect on the initiation of such studies.

The scope of the problem of preparing a people for

independence, after decades of dependency on the

Government, was beyond the comprehension of the tribe.

Working toward an effective solution required far greater

expertise and knowledge than was available within the

29 a5 earlier described, amendments to the Act in 1956 and

1958 authorized partial reimbursement to to tribal funds for these

expenditures.

aia A li

39a

tribe itself. The Government’s position throughout the

termination period was that it stood ready to lend

assistance whenever specific aid was requested, but this

presupposed that the tribe could identify and understand

the scope ef its problems, and that it could formulate the

necessary questions and requests for aid that it required.

In practical application this also presupposed that the

tribe would be able to organize a program under which

planning for termination could proceed. That sup-

position was clearly not warranted.

As a result, the necessary studies were not even ini-

tiated until over a year following passage of the Act.

Congressman Reuss, for example, was alarmed by the

provision that the Menominees would be (as he put it)

“shoved out on an out-you-go-ready-or-not basis”’ whether

or not an acceptable plan could be devised during the 4

years allotted for an after-the-fact study. The Acting

Commissioner of Indian Affairs acknowledged that the

Bureau had failed to explore a number of problems

growing out of termination, such as hunting and fishing

rights, status of the tribal court, stumpage payments, and

the fate of tribal enterprises such as the hospital, welfare

payments and conduct of the schools. |

All cognizant officials at the federal and state level

were aware of these problems, and the Indian Bureau had

compiled substantial relevant data over the years, but

these data and assistance from the Bureau were not

forthcoming during the termination period, probably

because Bureau functions were contracting during the

same period.” As a result, studies were left to the

Menominees, or to the State of Wisconsin, which had

30six months after the Act was passed, the Bureau cut its

local staff by over 50 percent. That had been the underlying spur

to termination legislation. The Bureau immediately began to trans-

fer its functions to the Menominee Indian Advisory Council.

40a

conflicting interests at many points. The Menominees

had for the preceding century been closely supervised,

directed and controlled by the Bureau, and were trained

to dependency. The local program officer for the Bureau

observed that the Menominees reacted with uncharac-

teristic “‘anxiety” and with “‘bewilderment, irritation and

conflict.” His prepared analysis concluded that more

than ‘administrative skill” was required, namely, “people

expertly trained in the field of social science’”’ conducting

“sound social studies.” There can be no doubt that

defendant’s representatives were aware of the need for

in-depth studies, but the Commissioner of Indian Affairs

rejected this advice on the grounds that funds for such

research had already been obligated, and that necessary

training of the Menominees could be accomplished by

an “adult education program.””!

In 1955, the Wisconsin legislature created the Meno-

minee Indian Study Committee (MISC) in recognition

of the need for decisions on the social, civil and local

governmental needs of the Menominees. It was created in

response to a request for help by the Menominee Advisory

Council directed to the state and the University of

Wisconsin. Because MISC was not created nor organized

to act until a year or two after termination, its research

was not concerned with whether or not termination

should take place, but rather toward what to do about it,

31 The “adult education program” did not serve its purpose

because the majority of the Menominees had insufficient exper-

ience, training, and understanding to absorb the material offered

and dropped out of class. The Government had long established an

anthropological division in the Bureau of Indian Affairs and was

aware of the usefulness of applied anthropology in bridging cul-

tural shock. Anthropologists had testified on the dangers and diffi-

culties attendant upon a policy of termination of federal trustee-

ship over Indians.

4la

assuming it to be an accomplished fact. MISC’s member-

ship of 14, consisted of three Menominees, representa-

tives of each of the two counties within which the reser-

vation was contained, six members representing the

Wisconsin departments concerned with taxation, public

welfare, public instruction, highways and conservation,

one state senator, two assemblymen, and the state

attorney general. Its studies of transition problems were

in part financed by tribal funds. Its responsibility was

to develop legislative proposals.

The state legislature did eventually adopt a series of

statutes creating a Menominee County coterminous with

the reservation and transferring the tribe and its activities

from federal to state auspices. The new laws were to

become effective on the date of publication of an accep-

table termination plan,*? but only if that plan con-

tained the deed restrictions above quoted.*®

Being a state committee, MISC was clearly state-

oriented, and it was further handicapped in assisting the

Menominees by the narrow question to which it was

directed, namely, what to do about termination, taken as

an assumed fact. As a result, the committee members

examined the Menominee problems within the cenfines

of their customary governmental operations. The Meno-

minees constituted less than 1 percent of Wisconsin’s

population and were not regarded as holding any special

rights by reason of treaty provisions or trusts status as

had been the case under federal supervision. As a result,

MISC tended to ignore the human and social problems

of termination in favor of pragmatic “housekeeping”

32 Which occured on April 29, 1961.

33 at note 26 supra.

42a

considerations, with the state’s interests uppermost in

mind.*

On advice from the State University Advisory Com-

mittee, the Menominee Advisory Council organized its

own special study group called the Coordinating and

Negotiating Committee. That group eventually sub-

mitted a tribal plan which was then reviewed by MISC.

In short, there was an abdictation of responsibility in

preparing the Menominees for the manifold problems of

termination which had been thrust upon them. The

wards in this protective trust relationship were in prac-

tical effect left to their own devices. Instead of in-

creasing assistance during a difficult transition period, the

Indian Bureau began to withdraw the services it had

traditionally provided prior to termination.*®

By way of illustration, the Menominees were in effect

left in the middle between federal and state governments,

34The Chairman of the University of Wisconsin Advisory

Committee stated that “[t]he job of the Menominee Indian Study

Committee was to keep the heat on the Tribe to come to their

own decision.’ Yet these were decisions which the professionals

themselves deemed extraordinarily complex. As MISC subse-

quently reported: ‘Failure to evolve a satisfactory plan (for ter-

mination of the Menominee Tribe) would result in disaster as to

the best interests of the State of Wisconsin.”

35 Spokesmen for the university and state committees ex-

plained that: “The omnibus plan is large and complex * * * the

issues and problems many. * * * We must frankly confess to have

done little better than to have skimmed the surface on these prob-

lems.”

36pr. Verne F. Ray, anthropoligist and ethnohistorian, and

plaintiffs’ principal witness concluded: ‘‘Had the United Siates

properly carried out its obligation, as initiator of the idea of ter-

mination and as trustee for the tribe, its far greater competence in

research and analysis would undoubtedly have resulted in complete

abandonment of the termination project.

43a

neither of which was prepared nor disposed to treat with

the problems of termination. At a time when they were

still under federal supervision and protection (July 16,

1959) the Secretary of the Interior sent them the fol-

lowing telegram:

Reurtel July 9 concerning state legislative proposal

for thirty year restrictive convenant on sale Meno-

minee Forest property, we think proposal unfair in

discriminating against Menominee property rights in

manner not applied to other Wisconsin citizens. In

answer your specific query does Secretary have right

to do this, we believe we can but we would do so

reluctantly only because you appeal that it is only

way Menominees can get state legislation they want.

Also it is in *** accord with desire of all parties

that forest be retained in Menominee ownership

with maximum benefits from sound conservation

practices. We will incorporate a proper restrictive

sale convenant in the deed provided Menominees

give their consent ***,

V. The Menominees Were in Fact Unprepared for

Termination When it Occurred

Because of a widespread awareness of the foregoing

circumstances, there was general agreement among

federal and state officials and concerned social scientists

that the Menominees were in fact socially, culturally,

economically and politically unprepared for termination

as scheduled. Congressmen Laird and Reuss and state

senators Trinke and LaFave publicly expressed their

opposition to termination. In adjoining Shawano County,

officials directed the following resolution to Congress:

*** WHEREAS, the State of Wisconsin, Shawano

and Oconto Counties were not considered by the

Congress in the passage of Public Law 399 [the

termination bill] and only one hundred fifty Meno-

44a

minee Indians from a tribe of over three thousand

attended the meeting of the tribal council which

considered the acceptance of the terms of Public

Law 399,

BE IT RESOLVED *** that [the senators and

congressman addressed] *** be requested ***

1. To introduce immediate legislation to repeal Public

Law 399 in its entirety.

Social science witnesses cite the inconsistencies in

defendant’s position that the Menominees were ready to

exercise the rights and responsibilities of other American

citizens in governmental matters, but thereafter were to

be closely circumscribed in the management of their valu-

able forest, as if they were still wards incapable of exer-

cising those rights and responsibilities. They felt that the

Menominees were far from being fully acculturated in

many of the spheres most critical to successful entry on

an unlimited and unrestricted basis into the world of

Wisconsin whites. During a long period of reservation life

they had developed a special system of values and expec-

tations. Not having been accustomed nor permitted to

make decisions of their own, they had grown to expect

a wide variety of services without charge. There were

things more important to the Menominees than money,

and there was a general apathy toward tribal government.

The individual standard of living was low, and there were

no local business leaders. The Menominees did not pos-

sess the skills and experience necessary to run the timber

operation and a local government. Nothing during the

preceding century had prepared them for modern politics.

The Menominees were totally unprepared for an allot-

ment of tribal lands to individuals and families. They had

rejected the policy enunciated by the Allotment Act of

1887 which contemplated that with the assignment of

45a

individual homesites, the Indians would turn to agri-

cultural pursuits and tribal bonds would be weakened.

Thus they had gained no experience over the years in the

handling of land as a private possession, and they equated

allotment with “‘losing’’ their community land. This fact

had not been taken into consideration in selecting tribes

suitable for termination. Communal ownership had been

an essential and traditional cultural value of the Me-

nominees. Each individual had use rights in all tribal

property, and held no piece of paper evidencing owner-

ship of a particular parcel. After termination, each in-

dividual was required to purchase a parcel from MEI in

order to have title to it and to his home. The reaction

was suspicion and distrust of the termination proposal

and of the tribal leaders.

Problems growing out of a lack of formal education

outside the reservation as well as language problems also

confronted the Menominees as they approached termina-

tion. Some Menominees in middle age had to have ter-

mination explained through interpreters. Although

Menominee children were then progressing as high as the

eighth grade before discontinuing their studies, the older

tribal leaders charged with decisionmaking had not even

reached that modest level of schooling. Upon leaving

school a Menominee still knew little about typical non-

reservation life in Wisconsin, and almost nothing about

business. Their sawmill had been run by white employees

of the Indian Bureau, paid by the Menominees, and they

had been excluded from the better paying managerial,

supervisiory and skilled positions in their own enterprise.

Other cultural and economic shocks awaited the

Menominees after termination. The reservation system

had bred distrust and poor relationships between the

Menominees and non-Indian residents in adjacent coun-

ties. Termination resulted in a loss to the Menominees

o. NR ye eee

46a

of their local doctor and hospital. The Governor’s Com-

mission on Human Rights reported that less than 5 per-

cent of the tribal children had adequate diets, and the

number of Menominees receiving some public assistance

was six times the state average.

VI. Actual Impact of Termination Upon the

Menominee Cash Balance, Other Assets, and

Way of Life

When the Act was passed, the Menominees had a

balance in the U.S. Treasury of $9,960,895.°” Shortly

thereafter the $1,500 per capita distribution reduced

that balance by $4,905,000. It was further reduced by

$2,268,240 in September 1955 to correct improper

computation of per capita payments made to reflect

the fair market value of timber previously cut from the

reservation, commencing back in 1941. The Depart-

ment of the Interior reported on February 24, 1956

that in less than a year’s time, the Menominee balance

had shrunk to $2,150,000. The report further indi-

cated that cash receipts during the preceding year had

not covered tribal obligations and it concluded that

federal funds were required for roads, schools and

adult education. The report did not, however, svg-

gest reconsideration of the Menominees’ supposed

“readiness for termination.’””*®

37This cash balance had been one of the primary factors in

selecting the Menominees for termination.

38The Chairman of the Menominee Tribal Council testified

before the House Subcommittee on Indian Affairs in February

1956, that the tribe had sustained losses in the fiscal years 1952

through 1955. And the Acting Commissioner of Indian Affairs

had testified at the same hearing that circumstances had changed

since the Act had come under review. He urged the subcommittee

to reconsider the situation.

47a

Right after termination, the Menominees lost their

hospital because it failed to meet state standards. On

July 27, 1960, just prior to termination, the Meno-

minee General Council passed a resolution addressed

to the Secretary of the Interior, charging negligence in

connection with a recent remodeling of the hospital

at a cost to the tribe of $250-$350,000. Ten violations

of the state building code were cited. But on May 11,

1961, the Acting Commissioner of Indian Affairs re-

jected the resolution on the grounds that it had not

been the intent of the Menominees, when they were

still wards of the defendant, that the remodeling

undertaken by the Bureau comply with state require-

ments. Compliance would have been too expensive,

it was stated.

Conditions continued to deteriorate. In January

1965, the Menominees summarized for MISC, deve-

lopments in the 4 years following termination. The

report cited an inadequate tax base; the high cost of

tubercular incidence; the high ratio of welfare and

correction costs to income; lack of adequate job

training; and school dropouts and deliquency. Property

tax bills and bond interest vere regularly exceeding

earnings from the mill. Efforts to bring new industry

into Menominee County had failed because the already

high property taxes were increasing, and because local

labor was pgenuatcty trained and local support facili-

ties were lacking.

39In March 1965, Senator Proxmire reported to the Senate

“that the consequences [of termination] for this Wisconsin tribe

have been very bad, in spite of the fact that the state of Wisconsin

and its university has tried to help the Menominees. The Menom-

inees have suffered greatly. They are poor. Many are unemployed.

The health of these Indians has suffered seriously.”” He added:

“This is a Nation which at one time controlled a large portion of

[footnote continued]

TR ped Ahi ae Wi ee Te

48a

In a report in 1965 the Indian Bureau joined with the

Governor of Wisconsin and its senators in reporting this

deteriorating condition and the Bureau flatly stated to

the House Appropriations Committee that termination

had been “ill advised.”*° These conditions were predic-

table. They had in fact been predicted. Governor

Gaylord Nelson appealed for financial aid to the Chair-

man of the Senate Subcommittee on Indian Affairs,

noting that:

The present economic problems on the reservation

resulting from the health, education and welfare

problems are a consequence of the pre-termination

situation. As Attorney General John W. Reynolds

pointed out in his testimony before the Senate

Subcommittee on Indian Affairs, one cannot take

people out of an institution in which they and their

forefathers have lived all of their lives and then

claim that the operator of the institution has no re-

sponsibility for what happens to them thereafter.

The new management at MEI had inherited a 50-year

old plant, without needed improvements. At the same

time, it had assumed responsibility for providing all

governmental services in the face of exhausted capital

reserves required for investment. The individual Menomi-

Wisconsin, and with which we made a treaty under which one small

primeval area of Wisconsin was to remain as their territory.”

Declaring that ‘this proud tribe is gradually and painfully disinte-

grating,’ the Senator drew attention to the fact that the average

Menominee family of five subsisted on an annual income of $2,300;

one out of seven was on welfare; and a third were subsisting on fed-

eral food surplus distributions.

40The BIA report concludes that Menominee County was the

smallest and poorest in Wisconsin and that Menominee County had

become a “pocket of poverty”’ following the termination of federal

services and supervision.

49a

nee was surprised to find that he was now required to

pay market value for the individual parcel of land he

occupied, but was without the cash to buy it, with the

result that individual MEI income bonds were being

surrendered in lieu of cash. MEI was essentially con-

trolled by non-Indians, and as it struggled for survival it

initiated management policies which the Indians found it

difficult to accept. As a result, severe tensions developed

between the tribe and its own representatives in MEI.*!

Individual Menominees had no prior experience in

paying for taxes, health care, utilities and other services

formerly provided vy the community. As a result, some

families suffered a discontinuance of water and elec-

trical services, and some were in danger of losing their

homes. Many were surprised and outraged when the

state ruled in 1962 that game laws were to be enforced

in Menominee County. Menominee treaty rights were

eventually confirmed, but only after litigation carried

to the U.S. Supreme Court.

As the result of the foregoing conditions, as further

detailed in the findings, the President on July 8, 1970,

urged repudiation of House Concurrent Resolution 108

(August 1953) to the effect that termination was the

long range goal of the Congress. The President stated

that the policy was wrong and based on false premises.

He explained:

Termination implies that the Federal government

has taken on a trusteeship responsibility for Indian

communities as an act of generosity toward a dis-

advantaged people and that it can therefore discon-

41 For example, when MEI decided to dispose of the Menom-

inee electric plant to Wisconsin Power and Light, tribal members

unsuccessfully sought an injunction to halt the sale.

50a

tinue this responsibility on a unilateral basis when-

ever it sees fit. But the unique status of Indian

tribes does not rest on any premise such as this.

The special relationship between Indians and the

Federal government is the result instead of solemn

obligations which have been entered into by the

United States Government.

Down through the years, through written treaties

and through formal and informal agreements, our

government has made specific commitments to the

Indian people. For their part, the Indians have

often surrendered claims to vast tracts of land and

have accepted life on government reservations. In

exchange, the government has agreed to provide

community services such as health, education and

public safety, services which would presumably

allow Indian communities to enjoy a standard of

living comparable to that of other Americans.

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

the special relationship between the Indian tribes

and the Federal government which arises from these

agreements continues to carry immense moral and

legal force. To terminate this relationship would

be no more appropriate than to terminate the citi-

zenship of any other American.”

42 Post-trial briefs cite the Menominee Restoration Bill (H.R.

10717) which passed the House on October 16, 1973 by a vote of

404-3. It would reestablish federal supervision over the Menom-

inee Tribe, reinstitute tribal self-government and restore the protec-

tion of a trust relationship with respect to tribal property. Debate

on the bill further demonstrated that Menominee ‘‘consent”’ to ter-

mination had been forced. The Assistant Secretary of the Interior

wrote the chairman of the committee in support of the bill that:

‘‘* * * funds coming to the Menominees were to be held hostage

until termination was agreed to. Thus the Menominee termination

can be viewed as an instance of ‘forced termination,’ a policy

which the President soundly rejected in his Indian message of July

8, 1970.”

[footnote continued]

5la

VII. Conclusions

The unique relationship between the Government

and the Indians has long been judicially recognized.**

It has been compared to that of guardian to ward, or

trustee to cestut que trust. Accordingly, the conduct of

U.S. representatives in the course of that relationship has

always been judged by the most exacting fiduciary

standards. The fiduciary duty assumed by the Govern-

ment imposes upon it the obligation to act at all times

with the Indians’ best interests uppermost in mind, and

to exercise prudence and good faith in the control and

management of Indians properly within its trust.“* The

duty of care owed is especially high when the Govern-

In the course of debate, Congressman Meeds referred to ‘‘an

element of coercion” in citing Senator Watkins’ meetings with the

Menominees; and Congressman Haley expressed relief “that the

misleading information that these Menominees received did not

come from this side of the House.’’ Congressman Saylor observed

that “we come today to the final chapter of a tragedy that was

authored in the other body 19% years ago. The bill before us, H.R.

10717 is not a panacea nor a permanent solution to the problems

of the Menominee Tribe of Indians, nor does it undo the human

suffering and economic damage imposed on these people over the

past 20 years. It is not a perfect bill, Mr. Speaker, but it is a better

bill than the monstrosity that was rammed through this House in

1954 as part of the mistaken ‘termination policy’ of those times.”

3 United States v. Kagama, 118 U.S. 375, 383-85 (1886);

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15 (1831); Arenas

v. United States, 60 F. Supp. 411, 419-20 (S.D. Cal., 1945).

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

Chippewa Indians v. United States, 301 U.S. 358, 375-76 (1937);

Oneida Tribe of Wisconsin v. United States, 165 Ct. Cl. 487, 492-

94, cert. den. 379 U.S. 946 (1964); Seneca Nation v. United States,

173 Ct. Cl. 917, 925 (1965); Menominee Tribe v. United States,

101 Ct. Cl. 22 (1944); Menominee Tribe v. United States, 101 Ct.

Cl. 10 (1944); Pyramid Lake Paiute Tribe v. Morton, 354 F.Supp.

252 (D.D.C., 1972).

52a

ment-trustee has itself developed an interest related to

the management of Indian property.*?

In this case a specific trust relationship had long

existed between plaintiffs and defendant. 46 That trust

relationship continued beyond termination and until

such time as plaintiffs were capable of assuming manage-

ment and control of their property and assets from

defendant.*” A trustee actually has a duty to resist

termination when it is inappropriate*® and this would

be particularly true where, as here, there are treaty

guarantees present and entitled to consideration.

It is apparent from the foregoing detailed recital of

the facts underlying termination of the Menominees that

it was not in their best interests that the federal trustee-

ship be unilaterally ended. The Termination Act was

initiated by the defendant in its own interests “‘to get out

of the Indian business’’ and to reduce costs of operating

the Indian Bureau. During the termination transition

period between passage of the Act and its,effective date,

defendant made little effort to negotiate solutions to the

many problems confronting plaintiffs as a result of ter-

mination of federal supervision. On the contrary, in

45 Navajo Tribe v. United States, 176 Ct. Cl. 502, 364 F.2d

320 (1966). Also see & cf. Squire v. Capoeman, 351 US. 1, 8

(1956). Note that the Government initiated termination as a

means of curtailing offices of its Indian Bureau; and that it main-

tained a continuing interest in preserving the Menominee Forest (as

a forest) for public purposes after termination.

46 See treaties cited at notes 4-6 supra, and Menominee Tribe

v. United States, 101 Ct. Cl. 10 at 19-20.

47See 10 BOGERT, TRUSTS AND TRUSTEES, § 1010 (2d

ed. 1962) at 574. See also, Idem, § 1001-02 at 493 and 502.

48Cf Bay Biscayne Co. v. Baile, 73 Fla. 1120, 75 So. 860

(1917); Hughes v. First Nat’l. Bank in Oakland, 47 Ca.App.2d

547, 118 P.2d 309 (1941).

53a

amendments to the Act and otherwise, defendant gave

consideration and effect to its own interests and to the

interests of the state where state interests were in con-

flict with the best interests of plaintiffs.

Plaintiffs did not effectively consent to and were in

fact opposed to termination. But even where facts are

present demonstrating consent (and they are not in this

instance) beneficiaries to a trust are capable of consent

only after they have been exposed to a full, fair and good

faith disclosure of all pertinent facts, and only if they

are of full capacity. A good many of the Menominees

were totally unaware of the meaning and consequences

of termination and lacked the capacity to give their con-

sent to such a far-reaching measure which would have so

profound an effect upon their future.

Defendant failed to properly apply the criteria that

it had itself developed to determine the feasibility of

termination. The Menominees did not in fact meet any

of those criteria. Little if any effort was made to deter-

mine whether or not plaintiffs were in fact ready to as-

sume management and control of their own property and

affairs.

Following the ill-advised termination of the federal

trusteeship, defendant failed to assist the Menominees in

preparing for the problems which would inevitably fol-

low, nor to reconsider the policy of termination, nor to

adopt appropriately modified termination legislation. As

a result, the Menominees were unprepared and untrained

in government or industrial management to assume the

extensive responsibilities which had involuntarily been

imposed upon them. This had a disastrous effect upon

their assets and their way of life, a result which could

#910 BOGERT, TRUSTS AND TRUSTEES, §1006 (2d ed.

1962) at 530-31.

OE LS na eae ee ee rae ey

54a

readily have been anticipated and which was in fact

anticipated. It is concluded that these circumstances

constituted an abrogation of defendant’s fiduciary

obligations growing out of its treaty and trust relation-

ship to plaintiffs, and that defendant’s acts and omissions

constitute a breach of the fiduciary duty owed to plain-

tiffs.

The damages issues arising out of the foregoing cir-

cumstances are considered in the separate opinions which

follow.”

50 See note 2 supra.

55a

FINDINGS OF «ACT

General Background and History of the Menomi-

nee Termination Act; Relationship Between the

Parties; Consequences of Termination of That

Relationship

: Jurisdiction

1. This action is brought pursuant to, and the juris-

diction of this court is founded upon, Sections 1491 and

1505 of the Judicial Code (28 U.S.C. 1491 and 1505).

Parties Plaintiff

2. Tnbe. Plaintiff, the Menominee Tribe of Indians, is

a recognized tribe of Indians which has existed since time

immemorial, and which has always resided in what is now

the State of Wisconsin. Menominee Tribe of Indians,

et al. v. United States, 179 Ct. Cl. 496 (1967), aff'd

391 U.S. 404 (1968).

3. Corporation. _ Plaintiff, Menominee Enterprises,

Inc. (hereinafter MEI), is a corporation organized under

Chapter 180 of the Wisconsin statutes pursuant to a plan

approved October 30, 1959 by the Secretary of the

Interior for the future control of Menominee Indian

tribal property and future service functions. In accor-

dance with the plan, the Secretary of the Interior, fol-

lowing termination of his authority to supervise the tribe

and its property, transferred the tribal assets to MEI.

All stock ownership in MEI was issued to a voting trust,

the trust to continue in existence until terminated by

holders of the trust certificates. Issuance of these certi-

ficates was limited to the 3,270 members of the tribe

whose names appeared on the final roll of the tribe as

proclaimed on June 17, 1954.

4. Individuals. Plaintiffs, Gordon Dickie, James Fre-

chette, Jerry Grignon and George Kenote, are all enruiled

members of the Menominee Tribe, and stockholders of

MEI.

56a

5. Trustee. Plaintiff, First Wisconsin Trust Company,

is a corporation, duly organized and existing under the

laws of the State of Wisconsin, which was appointed

trustee under the Menominee Assistance Trust to protect

the rights of members of the tribe less than 18 years of

age, non compos mentis, or otherwise incompetent. As

trustee, it holds and exercises the voting rights in MEI of

those shareholders who are in its trust.

The Menominee Reservation

6. The Menominee Indian Reservation, the land where

the tribe and most of its members presently reside, was

for the most part aboriginally owned by the tribe, and

was confined to the tribe by the Treaty of Wolf River,

May 12, 1854, 10 Stat. 1064. This reservation was never

allotted, and remained wholly owned by the tribe until

conveyed in 1961 to MEI by the Secretary of the Interior

pursuant to the Menominee Termination Act of 1954,

25 U.S.C. 891-902. It is an area in the State of Wiscon-

sin consisting, as of June 17, 1954, of 233,902 acres of

unallotted land along the upper Wolf River in north-

eastern Wisconsin. About 95 percent of the land is forest

land which was placed under what was intended as a form

of sustained yield timber management by the Act of

June 12, 1890, 26 Stat. 146, and the Act of March 28,

1908, 35 Stat. 51. Menominee Tribe of Indians v. United

States, 117 U.S. 442 at 485 (1956). The tribe held the

land ‘‘as Indian lands are held” until 1961 when the de-

fendant conveyed fee title by deed to MEI, pursuant to

the Termination Act of 1954.

7. From 1854, and until the Termination Act of 1954

was implemented in 1961 by deed to MEI, the defendant

held fee title to the Menominee Reservation in trust for

the benefit of the tribe, and managed the affairs and

properties of the Menominees. Until that deed of con-

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veyance, defendant had the fiduciary duty of a trustee in

regard to the plaintiffs, and accordingly was under

obligation to act in such a manner as to safeguard the

interests and property of the tribe from the standpoint

of the best interests of the tribe.

8. The deed by which the United States in 1961

conveyed its legal title in the Menominee Reservation to

MEI, attached covenants or restrictions on the transfer

of land. These covenants or restrictions required sustained

yield management of the forest in perpetuity, and pro-

hibited alienation or encumbrance of the lands for a

period of 30 years from April 26, 1961.

Introductory Facts

9. Prior to April 29, 1961, the effective date of ter-

mination of federal supervision over the Menominee tribe

and over its members and its properties, the Menominees

had a tribal organization recognized by the Secretary of

the Interior as having authority to represent the tribe.

After termination, there existed a Wisconsin corporation,

named Menominee Indian Tribe of Wisconsin, Inc., over

which the Secretary exercised no jurisdiction. As of

1954 the tribe had 3,270 enrolled members. On April 28,

1961, its members consisted of the enrolled members

or their descendants. This court in Menominee Tribe v.

United States, 179 Ct. Cl. 496 (1967), aff’d 391 U.S.

404 (1968), rejected the contention that the Termina-

tion Act of June 17, 1954, 68 Stat. 250, abolished the

tribe or its membership.

10. The history of the tribe and its lands was authori-

tatively described by this court in the above-cited case at

179 Ct. Cl. 501-02, as follows:

The Menominee Indians have lived:as a tribe since

time immemorial in Wisconsin. They have made

58a

various treaties with the United States through the

years, most of which have nothing to do with this

present lawsuit. However, by way of background,

we will point out that by the Treaty of St. Louis, 7

Stat. 153 (1817), they acknowledged themselves

to be under the protection of the United States.

The treaties ‘of Prairie des Chiens, 7 Stat. 272

(1825), and Butte des Morts, 7 Stat. 303 (1827),

settled certain boundary questions, while by the

Treaty of Washington, 7 Stat. 342 (1831), and 7

Stat. 405 (1832), they ceded 3 million acres to our

Government. They ceded about 4,184,000 acres

to the United States by the Treaty of Cedar Point,

7 Stat. 506 (1836), and in 1848, ceded the balance

of their land of approximately 4 million acres by the

Treaty of the Lake Pow-aw-hay-kon-nay, 9 Stat.

952, in exchange for about 600,000 acres west of

the Mississippi River.

As part of this last treaty and exchange, it was

agreed that they could inspect the land west of the

Mississippi before moving on it. They did so and

reported dissatisfaction with it and refused to move

to it. The Government then ceded them 276,480

acres of different land on the Wolf River in Wiscon-

sin which was

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