# Petition — Menominee Tribe of Indians v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1555%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 950 ## Text 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. re 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 . 3 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 5 [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 | 6 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). 7 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] 8 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. 9 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 aE Tire ey. 10 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 11 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 12 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). 13 , ——, 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] 14 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. 15 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 8 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 16 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: 17 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. ad 18 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 19 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 ne Be SR Speke NE TAR OP ER ae th DE NS cer ee Pe Ss opst ui ae Seer — . ~ ele OPA eee a hw. 4 FT PEI Oa “ ~~ WE, “Dt oe 7 T se = Anan OMS ay ethene ee deee hae INE pa ks is Ga epee tes Ang 3st 0 ate alsa s i fa WEA _- es ae a bf Es Pint Md i E Be: My ee a Sibaatent aes TAPER SS WE 5 SY SEP ERTE RE R48: 20 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. 21 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. 22 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 la 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. 2a 2 108, 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 . % 3 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.” © 4 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. 5a 5 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 I. 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 6a 6 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). 7a 7 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.” 8a 8 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. 9a 9 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 10 (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 11 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 12 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 13 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 14 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 V. 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 w * 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 15 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 16 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 17 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. 3 3 i hy ves ig 18a 18 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 19 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] UE ENS Sar fT Se Pn Ey OnE 3, ~ Oey Nec ea NaF OO yee ras =r _- ee - ee wee ee -_ ww rar <= <3 2 ee er ee ee ee ee ee 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 the laws of Wisconsin.”© 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.”’ an es x~ ig 4 om 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 TH [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1555%3A1. Public record. Not legal advice.