Petition — Hoopa Valley Tribe of Indians v. Short, 5 Cl. Ct. 3545 (1984) (No. 83-1555)

~ POifice - Supreme Court, U.S.

No. MAR 3 1984

ALEXANDER L. STEVAS

IN THE es

Supreme Court of the United States

October Term, 1983

HOOPA VALLEY TRIBE OF INDIANS,

Petitioner,

Vv.

JESSIE SHORT, et al.,

Respondents.

PETITION FOR

WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT

THOMAS P. SCHLOSSER

Metropolitan Park, 16th Floor

1100 Olive Way

Seattle, WA 98101

(206) 623-1255

Attorney for Petitioner

Of Counsel.

ZIONTZ, PIRTLE, MORISSET,

ERNSTOFF & CHESTNUT

Robert L. Pirtle

Steven S. Anderson

aBCO Printing - Seattie. WA

i

QUESTIONS PRESENTED FOR REVIEW

1. Was the lower court correct first, in ruling that Congress’

directive in 25 U.S.C. § 407 that timber proceeds from

unallotted reservation forests be used for “‘members of the

tribe or tribes concerned” did not refer to the enrolled

members of a federally-recognized tribe, but rather to anyone

held to be “‘communally concerned’, thus invalidating the

Secretary of the Interior’s construction of the statute

governing harvest of timber on 50 million acres of land on

some 90 Indian reservations; and second, in using that ruling

as a predicate for Tucker Act jurisdiction and liability to

persons not members of any tribe?

2. Was the lower court’s construction of the term ‘“‘tribe’’

in 25 U.S.C. § 407 to mean not a politically-defined tribal

community but rather a racially defined class of ‘‘Indian’’

descendants who have left the reservation, abandoned tribal

relations, and become assimilated into the general society,

consistent with the Indian Commerce Clause and the Equal

Protection requirements implicit in the Due Process Clause

of the Fifth Amendment?

3. In United States v. Mitchell (Mitchell II), _. U.S. __,

103 S. Ct. 2961, 2969 (1983), this Court held that an Indian

statutory Tucker Act claim will be sustained if the statute

‘can fairly be interpreted as mandating compensation for

damages sustained as a result of a breach of the duties [it]

impose{s].'" Did the lower court err in founding jurisdiction

on 25 U.S.C. § 407 and a related funds statute, but imposing

liability, not by examining §$ 407 to determine what duties

it imposes, but rather by importing into that statute duties

arising from the court’s construction of a separate statute

which does not meet the Tucker Act jurisdictional

requirements of Mitchell IT? Does such imposition of liability

ii

deprive petitioner of due process of law by denying an

opportunity to present evidence and argument as to whether

any duty imposed by 25 U.S.C. § 407 has been breached?*

* PARTIES TO THE PROCEEDINGS BELOW: Plaintiffs in the

Claims Court (Respondents here) are Jessie Short and approximately 3,800

individuals whose names appear in Appendix |. 2,303 plaintiffs have been

given summary judgment to date; the status of the remainder has yet

to be determined. Defendant below is the United States of America, and

Petitioner, the Hoopa Valley Tribe of Indians, is the Defendant-Intervenor

in the Claims Court.

TABLE OF CONTENTS

Questions Presented For Review................. i

I 5 oes tlicaie 6s. 00-00 Senne RNS iii

RPI, ys Ss Seanad cues wauccwren vues iv

Ee I 5 kop 0.5 4 ss ce eke eee vi

Decisions Below SP URAAOE Soa CARR ee xi

IN gos Shc as snc 00a nla ie-d Gale oe eee es xi

Statutes And Regulations Involved .............. xi

Statement Of The Case................ eee 1

Reasons For Granting The Writ ................. 6

I. The Lower Court’s Interpretation Of ‘‘Tribe”’ In

The Federal Tribal Timber Statute To Mean

‘“‘Communally-Concerned”’ Individual Indians

Rather Than The Organized And

Federally-Recognized Tribe Presents An Issue

Of Substantial Importance To The Admin-

istration Of Indian Property Throughout The

DOE 4 6 x.¥-0.p.sais bps 0Gs ts oe oles ee oa 6

II. The Court Of Appeals’ Interpretation Of The

Statutory Term ‘‘Tribe’’ As A Racial

Classification Ignores The Constitutional

Underpinnings For Federal Indian Law That

Compel Treatment Of Tribes As Politically —

Not Racially — Defined Groups............ 11

iv

Page

III. The Court Of Appeals’ Ruling Ignores The

Mitchell II Requirement That To Present A

Valid Tucker Act Claim The Source Of

Substantive Law Relied Upon Must Be Fairly

Interpreted As Mandating Compensation For

Be III in'¥a'b bree cis se eec cena 18

I aa. dec scenes ene tie Cems 21

TABLE OF APPENDICES

(bound separately)

Page

A ~ Opinion of Court of Appeals, October 6, 1983 . 1

B - Opinion of Court of Claims, September 23,1981 24

C - Opinion of Court of Claims, October 17,1973 . 40

D ~- 25 C.F.R. Part 83 - Procedures For Establishing

That An American Indian Group Exists As A

MSc siels dtlon < ow celia nals eae eee oa ones, OO

E - 25 C.F.R. Part 111 - Annuity And Other Per

IEE 5 5.5 ores Vee gelewues <biees 164

F - Timber Income By Fiscal Year and Area..... 167

G - Legislative History Of Act Of April 30, 1964, P.L.

88-301, amending 25 U.S.C. § 407........... 172

H.R. Rep. No. 1292, 88th Cong., 1st Sess. (March

i, Be wc k's 5 oe vce neonate he SURES 172

H -

Page

Hearings on H.R. 6287 and H.R. 4394 Before the

Subcomm. on Indian Affairs of the House Comm.

on Interior and Insular Affairs, 88th Cong., 1st

ee, Be er Bo o.cs css cca Naeeeeaaek os 178

Hearings on H.R. 6287, H.R. 4394 and S.1565

Before the Subcomm. on Indian Affairs of the

House Comm. on Interior and Insular Affairs,

88th Cong., 2d Sess. (March 6, 1964) ........ 181

Hearings on S.1565 Before the House Comm. on

Interior and Insular Affairs, 88th Cong., 2d Sess.

Ge Gas SEND. 0 6 Sh oak ohh ee van ese ede os 184

Affidavit of Graham E. Holmes............. 191

25 C.F.R. Part 163 - General Forest Regulations 194

Plaintiffs Who Are Parties To The Proceedings

SR Soin as Chae ues cebaae ne eee 212

Category 1: 142 plaintiffs who, in 1973-78, were

held or stipulated to be Indians of the Hoopa

We SUL ok ba cae aeaceanwuan. 212

Category 2: 1245 plaintiffs living on October 1,

1949 who received summary judgment of

entitlement by listing on ‘Attachment A”’ of the

Trial Judge’s Recommended Opinion of May 3,

PE scuba Cok was poe oe oe aaron oieeeans ae 214

(t

Page

Category 3: 6 plaintiffs who received summary

judgment of entitlement by listing on

‘‘Attachment C’’ of the Trial Judge’s

Recommended Opinion of May 3, 1982....... 236

Category 4: 782 plaintiffs born after October 1,

1949 and before August 9, 1963 (children of a

plaintiff listed in categories 1-3 above) who

received summary judgment of entitlement by

listing on ‘‘Attachment D”’ of the Trial Judge's

Recommended Opinion of May 3, 1982....... 237

Category 5: 128 plaintiffs born on or after August

9, 1963 (children of plaintiffs in categories 1-3

above) who received summary judgment of

entitlement by listing on ‘‘Attachment E”’ of the

Trial Judge’s Recommended Opinion of May 3,

ESE cre va acce occa me els aoe ee ih eae 249

Category 6: 1547 plaintiffs whose motions for

summary judgment of entitlement were denied

without prejudice, who filed duplicate claims, or

who defaulted, or who claim to be non-Indian

heirs, etc. (none dismissed)................. 251

vii

TABLE OF AUTHORITIES

Table of Cases Page

Aleut Tribe v. United States, 702 F.2d 1015 (Fed. Cir.

TEs, Sos ute whi GaROR. Pikat gee atais eS Pina ook Gack: BRS 5

Beaver v. Sec'y of the Interior, Civ. No. 79-2925-SW

2 ON ee Peer eee 4

Bryan v. Itasca County, 426 U.S. 373 (1976)......... 16

Delaware Tribal Business Committee v. Weeks, 430 U.S.

Se Sr Sick a ee ba ek hee Ce wees .° me

Eastport S.S. Corp. v. United States, 372 F. 2d. 1002

EE Ss a dp tetas vy Soule pala da E wate oka a6 18, 19

Epps v. Andrus, 611 F.2d 915 (1st Cir., 1979). ..... 17

Halbert v. United States, 283 U.S. 753 (1931)...... 8

Hynes v. Grimes Packing Co. 337 U.S. 86 (1949)... 19

James v. Watt, 716 F.2d 71 (ist Cir., 1983), cert. pending

Ne iyi ib ie vd Se GS See as cee ek 17

Keyes v. School Dist. No. 1 413 U.S. 189 (1973).... 15

Korematsu v. United States, 323 U.S. 214 (1944)... 15

Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st

Cir.), cert. denied, 444 U.S. 866 (1979) .......... 16

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) 9

Montoya v. United States, 180 U.S. 261 (1901)..... 13

Morton v. Mancari, 417 U.S. 535 (1974).......... 14, 15

Perrin v. United States, 232 U.S. 478 (1914)....... 13

Puzz v. Department of the Interior, N.D. Calif. Civ. No.

EE Soy oe oan wid, i ete aie ie ee 4

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). 14

United States v. Antelope, 430 U.S. 641 (1977) ...14, 15

United States v. Holliday, 3 Wall. (70 U.S.) 407 (1866) 16

Page

United States v. John, 437 U.S. 634 (1978) ........ 13

United States v. Mitchell (Mitchell II),

— U.S._, 103 S. Ct. 2961 (1983) ..... 1, 2, 18, passim

United States v. Mitchell (Mitchell I),

O85 C.B. GRE GIG i svc vet anwitae ss 1, 2, 5, 18, passim

United States v. Sandoval, 231 U.S. 28 (1913) ... .13, 16

United States v. Testan, 424 U.S. 392 (1976) ...... 18

United States v. Washington, 520 F.2d 676 (9th Cir..

1975), cert. denied, 423 U.S. 1086 (1976) ........ 15

United States v. Washington, 641 F.2d 1368 (9th Cir.,

1981) cert. denied, 454 U.S. 1143 (1982)......... 16

Washington v. Colville Confederated Tribed, 447 U.S.

EE I os he Ss ow a and Wn eg ew ete oe 15

White Mountain Apache Tribe v. Bracker,

Ge Wh Ce Es kab ok ce Ma eens 9, 11, 15

White Mountain Apache Tribe v. Williams, _ F.2d _.,

(9th Cir. No. 81-5348, Feb. 7, 1984)............. ll

Statutes and Regulations

Act of April 8, 1964, Ch. 48, 13 Stat. 39. .2, 3, 4, passim

Federal Court Improvement Act of 1982, 96 Stat. 57.. 5

SER 660 | ...0.. law xii

S G06 60 .......:.5..2.550 4 xi, 10

EE S08... 5b ike ee 16, 17

weet sis ©...) 4222 eee ~

hee we). oops ee 8

ee 2 Be Coe Ae A ed ~

Ue aw..... 3s. clei ee ee 8

Page

ee CL Sake cc eked eces es 8

ck sco cbecccvcscceucs: 8

ee RR CON oc G's dhs we 8

ee | Oa eee eo ae

25 U.S.C.§ 402a........ ‘ie SO ee ae

Se aan Ge........... ee Wak we i, ii, xi, passim

I oss ole

25 U.S.C. § 450 et seq; Indian Self- Determination and

Education Assistance Act of 1974, P.L. 93-638 . 16

eee ae 11

28 U.S.C. § 1254(1)..... . ee

28 U.S.C. § 1292 ............ oe Ase

Se = 20

28 U.S.C. § 1491....... Povetin ss ss. dy & 6, peoele

nUsc $i . 20

42 U.S.C. § 1983 ©..:........... eres 11

48 Fed. Reg. 56865 (December 23, 1983)... . rer

eee weer

ey sks pv ec ccs esse eee c ee 17

ese ads suede se csc cerscees xii

is Gi sis sss ce cv ececscccecs 15

26 C.P.R. Part 111.4.......... Watels ibe 6.0:0%e.0%e 15

SU bs eee Pee,

SS re 10

byes ces csc scesccuuse 10

ee Liens

eee 10

Other Authority

F. Cohen, Handbook of Federal Indian Law (1982 ed.).7, 12

(THIS PAGE INTENTIONALLY LEFT BLANK) /

xi

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

DECISIONS BELOW

Review is hereby sought of a decision of the United States

Court of Appeals for the Federal Circuit reported at 719 F.

2d 1133; the court’s opinion of October 6, 1983 is reproduced

as Appendix A to this Petition. The Court of Claims’ opinions

on other issues in this case are reported at 486 F.2d 561

(1973), cert. denied, 416 U.S. 961 (1974) and 661 F.2d 150

(1981), cert. denied, 455 U.S. 1034 (1982). The earlier opinions

appear as Appendices B and C to this Petition, App. 24, 40.

JURISDICTION

The decision of the Court of Appeals was entered on

October 6, 1983. In No. A-466 on December 29, 1983, the

Chief Justice extended the time for filing this Petition

through March 4, 1984. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254 (1).

STATUTES AND REGULATIONS INVOLVED

1. Section 407 of Title 25, United States Code, provides:

The timber on unallotted lands of any Indian reservation

may be sold in accordance with the principles of sustained

yield, or in order to convert the land to a more desirable

use, under regulations to be prescribed by the Secretary

of the Interior, and the proceeds from such sales, after

deductions for administrative expenses pursuant to

section 413 of this title, shall be used for the benefit of

the Indians who are members of the tribe or tribes

concerned in such manner as he may direct.

2. Section 163 of Title 25, United States Code, provides:

The Secretary of the Interior is authorized, wherever

in his discretion such action would be for the best interest

of the Indians, to cause a final roll to be made of the

—— of any Indian tribe; such rolls shall contain

the ages and quantum of Indian blood, and when

by the said Secretary are declared to constitute the legal

membership of the respective tribes for the purpose of

xii

segregating the tribal funds as provided in section 162

of this title, and shall be conclusive both as to ages and

quantum of Indian blood...

3. Section 83.4 of Title 25, Code of Federal Regulations,

provides:

Any Indian group in the continental United States

which believes it should be acknowledged as an Indian

tribe, and can satisfy the criteria in § 83.7, may submit

a petition requesting that the Secretary acknowledge the

group's existence as an Indian tribe.

25 C.F.R. Part 83 - Procedures For Establishing That An

American Indian Group Exists As A Tribe is reproduced in

its entirety in Appendix D to this Petition, App. 152.

4. Part 111 of Title 25, Code of Federal Regulations,

entitled Annuity And Other Per Capita Payments, is

reproduced in Appendix E to this Petition, App. 164.

IN THE

Supreme Court of the United States

October Term, 1983

HOOPA VALLEY TRIBE OF INDIANS,

Petitioner,

Vv.

JESSIE SHORT, et al.,

Respondents.

PETITION FOR

WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT

STATEMENT

Short v. United States involves personal claims of

individual plaintiffs that the United States is liable in money

damages for the Department of the Interior's failure to

distribute to them income from unallotted lands on the

Hoopa Square, a 140 square-mile tract of land set apart as

an Indian reservation by an 1876 Executive Order. The case

was filed in the Court of Claims in 1963. The decision of the

Court of Appeals for the Federal Circuit below responds to

motions by co-defendants United States and the Hoopa

Valley Tribe to dismiss Short as beyond the subject matter

jurisdiction granted by the Tucker Act, 28 U.S.C. § 1491.

The setting for the motions to dismiss and the court's

responses to them are highly unusual. The motions to dismiss

were filed in 1983 based on this Court’s holding in United

States v. Mitchell, (Mitchell I), 445 U.S. 535 (1980). As the

court noted, this inquiry raised issues ‘‘not before

2

articulated."’ App. 2. Prior to the motions to dismiss, all of

the substantive rulings of the Court of Claims had been

premised upon the Act of April 8, 1864, 13 Stat. 39, which

authorized creation of four Indian reservations in California.

App. 55. The Government and the Tribe argued in their

motions to dismiss that the 1864 Act could not fairly be read

as mandating compensation as required by Mitchell I and

thereby failed to meet the jurisdictional prerequisite for

Tucker Act claims “founded upon’’ an act of Congress.'

In the decision below, the Court of Appeals effectively

conceded this jurisdictional defect, App. 6, 719 F.2d at 1136,

but considered it “‘irrelevant’’ on the ground that a second

statute, 25 U.S.C. § 407, which had never before been

judicially mentioned in Short, sustained jurisdiction. Jd. This

§ 407 governs administration of all tribal timber throughout

the United States and authorizes the Secretary to utilize

proceeds from timber sales on those lands ‘‘for the benefit

of the Indians who are members of the tribe.’’ Although the

previous rulings of the Court of Claims had specified that

Short plaintiffs presented individual, not tribal claims, based

upon the 1864 Act, not § 407, the Court of Appeals held that

plaintiffs were entitled to recover pursuant to 25 U.S.C. §

407 because the word “‘tribe’’ ‘‘meant only the general Indian

groups communally concerned with the proceeds - not an

officially organized or recognized Indian tribe.’’ App. 7, 719

F.2d at 1136. Although the court substituted an entirely new

and unrelated jurisdictional and substantive basis for

recovery in Short, the court did not disclaim or reexamine

the previous rulings based on the 1864 Act. Instead, it held

that the previous rulings in Short were unaffected and

remained binding on the United States and the Tribe as law

of the case in interpreting § 407. App. 8, 719 F.2d at 1137.

1. United States v. Mitchell (Mitchell II), _. U.S. —, 103 S. Ct. 2961

(1983) was decided while the motions to dismiss were pending.

Supplemental briefs were filed pointing out that notwithstanding the

waiver of sovereign immunity found in the Tucker Act, Mitchell I still

required that a statutory claim for damages against the United States

be founded upon a statute that could fairly be read as mandating payment

for the breach alleged.

3

Short was filed by 3,323 plaintiffs, later joined by over 500

intervenors, who alleged that the United States had

erroneously excluded them from sharing trust income from

unallotted lands on the Hoopa Square, a square tract set

aside by an 1876 Executive Order as an Indian reservation

pursuant to the 1864 Act.

Twenty-five miles down the Klamath River from the

Square lies the Klamath River Reservation. Many of the

3,800 plaintiffs are descendants of Indians allotted parcels

of land there in 1893-98. The Klamath River Reservation had

been set aside by an 1855 Executive Order for the benefit

of the Klamath River Indians, predominantly Yuroks. In the

1880's, however, a non-Indian challenged the existence of the

Klamath River Reservation because it exceeded the four-

reservation limitation in the 1864 Act. President Harrison

responded by issuing an Executive Order in 1891 which

annexed the Klamath River Reservation and other lands to

the Hoopa Square. Together, these tracts are now usually

referred to as the ‘‘Hoopa Valley Reservation.”’

Commencing in the 1950’s, the Secretary of the Interior

began to sell timber from the unallotted lands on the Square

as authorized by 25 U.S.C. § 407. Pursuant to long-standing

Department practice that only federally-recognized tribes

and their members were eligible for § 407 timber revenues,

and pursuant to a solicitor’s opinion concluding that the

Square remained set aside for Hoopa tribal members alone,

the proceeds of these sales were made available exclusively

to those enrolled by the Tribe. The Hoopa Valley Tribe was

then and is now the only organized tribe on any portion of

the Hoopa Valley Reservation.’

2. The Yurok Tribe is a nearby federally-recognized tribe but is not

formally organized and its membership is undefined. 48 Fed. Reg. 56865

(Dec. 23, 1983). Only a few of the Short plaintiffs are involved in Yurok

tribal affairs, and most are antagonistic to attempts to organize it. No

tribe is a claimant in Short. Unlike the Yuroks, the Hoopas of the Square

organized a tribal government and adopted a constitution, some 20 years

before the Secretary began timber revenue distributions.

4

The Short plaintiffs argued that the 1864 Act gave them

the same rights to the timber proceeds as the members of

the Hoopa Valley Tribe. They sought a money judgment for

the value of their share of income from the Hoopa Square.

This contention was sustained by a Commissioner of the

Court of Claims in 1972. In a per curiam opinion, the Court

of Claims upheld its Commissioner in 1972, ruling that the

four-reservation limitation in the 1864 Act prevented

acquisition of any vested rights in the Square, and that all

individual Indians of the combined reservations thereby

received equal rights in revenues from all the Reservation,

both the Square and the 1891 Addition. See Appendix C.

Plaintiffs did not assert any claim under 25 U.S.C. § 407,

the statute regulating timber sales on unallotted Indian

lands, so § 407 was not briefed or considered by the court.

The Tribe and the Government filed petitions for certiorari

but these were denied. 416 U.S. 961 (1974).

While further proceedings were under way concerning

which plaintiffs were entitled to recover, the United States

attempted to organize the Yurok Tribe on the Addition but

the Short plaintiffs successfully blocked that attempt in

Beaver v. Sec'y of the Interior, Civ. No. 79-2925-SW (N.D.

Cal., Feb. 11, 1980). Plaintiffs continued to insist that their

timber claims were based on individual, not tribal, rights to

revenue. In 1981, the Court of Claims sitting en banc, in

another appeal, followed the 1973 opinion and reaffirmed,

as law of the case, the claimed rights based on the 1864 Act.

App. 30-32, 661 F.2d at 152. Defendants again unsuccessfully

petitioned for certiorari, 455 U.S. 1034 (1982).

In 1982, the Hoopa Valley Tribe retained new counsel in

the Short litigation and in its spinoff, Puzz v. Department

of the Interior, N.D. Calif. Civ. No. C-80-2908 TEH. (Puzz

is a district court Case brought by five of the Short plaintiffs

seeking a declaratory judgment that the Hoopa Valley Tribe

no longer has legitimate existence and an injunction to

prevent the United States from dealing with the Tribe as

the governing body of the Square. The Puzz plaintiffs argue

this result is compelled by Short, which, they assert, should

be given collateral estuppel effect in Puzz.)

5

In 1982, all parties filed requests for review by the Court

of Claims of additional lower court decisions on individual

entitlement of some 3,300 plaintiffs to recover. These appeals

were transferred to the Court of Appeals for the Federal

Circuit. At this point, while attempting to defend against

the dismantlement of the Tribe because of the asserted

collateral estoppel effect of Short, the Tribe and the

Government became convinced that under Mitchell I the

Court of Claims did not then and never did have jurisdiction

of damage claims in Short. This Court had held the Court

of Claims lacked Tucker Act jurisdiction over claims based

on a statute unless the statute created a substantive right

to money damages. The 1864 Act, the only statute

theretofore relied upon by the Court of Claims in Short, did

not meet this test since no statutory authority existed in

1864 for the United States to sell tribal timber, and the 1864

Act could not ‘fairly be read as mandating payment of

money damages” for allegedly erroneous timber sales. See

Mitchell I, 445 U.S. 535, 545 (1980). Its simple authorization

for setting aside four reservations in California could not

create actionable rights to timber revenues. The Tribe and

the United States therefore moved to dismiss.’

At oral argument on the motions to dismiss plaintiffs first

asserted that 25 U.S.C. § 407 was a basis for their claim.

The Government and the Tribe pointedly responded that $

407 only authorized payments to ‘‘tribes”’ or “‘members of

tribes,’’ and that plaintiffs, who presented only individuals’

claims, were neither. But the Court of Appeals for the Federal

Circuit, recognizing that the 1864 Act could not meet the

Mitchell I/Mitchell II test, disclaimed reliance on che 1864

3. The United States’ motion to dismiss also noted a possible defect

in the Court of Appeals’ appellate jurisdiction in light of the gloss placed

upon the Federal Court Improvement Act of 1982 by Aleut Tribe v. United

States, 702 F.2d 1015 (Fed. Cir. 1983). Aleut held that where a Claims

Court judgment did not dispose of all claims and did not certify the case

for interlocutory appeal, the court lacked appellate jurisdiction under 28

U.S.C. § 1292. For whatever reason, the Court of Appeals did not address

the appellate jurisdiction issue here.

6

statute and held that jurisdiction was now founded on § 407.

App. 6; 719 F.2d at 1136. Despite the new jurisdictional basis

for recovery, it held that its earlier rulings based on the

disclaimed 1864 Act were law of the case. App. 7-8; 719 F.2d

at 1136-37.

This petition primarily concerns the lower court's

misreading of 25 U.S.C. § 407, and the practical and

constitutional implications of that ruling for tribes

throughout the Nation.

REASONS FOR GRANTING THE WRIT

I. The Lower Court’s Interpretation Of ‘‘Tribe’’ In The

Federal Tribal Timber Statute To Mean ‘‘Communally-

Geena nat odes Indians —— Than ign

Issue Of Substantial Rapertenee To The

oo Of Indian Property Throughout The

ation.

25 U.S.C. § 407 and the regulations promulgated under

it govern timber management on every Indian reservation

in the country with unallotted iand. Its mandate, that the

beneficiaries of unallotted timber lands are the ‘‘members

of the tribe or tribes concerned,” has been rigorously followed

by the Secretary of the Interior with respect to the Hoopa

Valley Reservation and other reservations: the Secretary has

consistently construed § 407 to benefit only federally-

recognized tribes and those persons determined by the tribes

to be their members. The Court of Appeals’ unprecedented

ruling that any Indian, regardless of lack of tribal

membership, should share in these revenues if he can be said

to be ‘‘communally concerned’’ with the funds does

substantial violence to that important statute, its legislative

history, and to the Government’s administrative practice.

The mischief which may flow from this serious

misconstruction of § 407 is enormous:

- It introduces grave uncertainty to the process of

Secretarial distribution of unallotted timber income.

7

-- It invites claims against the United States Treasury for

past distributions of income on reservations around the

United States.

- It invites litigation against the Secretary and tribes

challenging use of income from tribal lands which are

proposed to benefit the tribe and its members.

-- It threatens the financial stability of tribal governments

whose reservations may be subject to such claims and

opens the door to substantial erosion of the income base

of reservation populations.

- It creates a new class of ‘‘Indians’’ - non-members of

tribes who are ‘‘communally concerned’”’ with income

from unallotted lands.

-It threatens tribal management authority over

reservation timber and calls into question the entire body

of Secretarial regulations which recognize tribal

representatives as the appropriate source of authority

for decisions concerning timber harvesting on unallotted

reservation lands.

25 U.S.C. § 407 governs Bureau of Indian Affairs’

commercial timber operations on approximately 90 Indian

reservations which have forested “‘unallotted”’ land, i.e., land

not divided in severalty among individuals. App. 168. Over

50 million acres of reservation land is held in unallotted

status throughout the United States. F. Cohen, Handbook

of Federal Indian Law at 471 (1982 ed.). In the most recent

six-year period for which data are available, fiscal years 1977

through 1982, the Bureau of Indian Affairs authorized

harvest of $411.2 million worth of tribal timber under the

authority of the statute, an average of about $70 million per

year. App. 167.

The Bureau of Indian Affairs has consistently construed

§ 407 to mean that unallotted timber funds are collected for

the use of federally-recognized Indian tribal governments and

their enrolled members, a construction correct not only

because of its consistency with the seminal principle of the

political relationship between the United States and Indians

8

qua tribes, see Section II, infra, but also because it is

conclusively supported by legislative history and caselaw.*‘

Because of the Bureau of Indian Affairs’ long-standing view

that federally-recognized Indian tribes are the only

beneficiaries of § 407 timber sales, the lower court’s ruling

that Congress meant something other than these tribes in

this statute now calls into question the Secretary’s handling

of over $70 million of tribal income each year.’ Indeed, in

Short alone, plaintiffs’ claims amount to more than $135

million, although the Claims Court has not yet finally

quantified the Government’s liability.

4. When § 407 was amended and reenacted in 1964, Congress was fully

aware that the Interior Department had construed the predecessor phrase

‘Indians of the reservation” to refer only to recognized members of

reservation tribes. The problem perceived was that the predecessor phrase

excluded members who had moved off reservations from benefits except

in unusual cases. App. 173, 184-85; see, e.g., 25 U.S.C. § 184; Halbert v.

United States, 283 U.S. 753, 762-63 (1931). The new (present) phrase

‘members of the tribe’’ allowed off-reservation tribal members to continue

to share the benefits, but Indians who were not.tribal members never had

any entitlement whether they lived on or off a reservation. As the

Assistant Commissioner for Indian Affairs explained to the House

Committee, ‘We have been considering them [the two statutory phrases]

to mean the same thing anyway. We cannc* give money to anybody except

members of the tribe anyway, but this clarifies the law .. ."' App. 182.

5. If the court is correct and Congress did not refer to federally-

recognized tribes in § 407 the Government may be liable for misapplying

not only timber revenues but other revenues. This is because a series of

tribal income statutes designate tribal beneficiaries in much the same way

as does § 407. For example, 25 U.S.C. § 314 requires compensation for

most rights-of-way to be paid ‘‘for the benefit of the tribe or nation;’’ 25

U.S.C. § 398b directs oil and gas lease proceeds payments to ‘‘the tribe

of Indians for whose benefit the reservation or withdrawal was created

or who are using and occupying the land;"’ 25 U.S.C. § 399 directs payment

for gold and other mineral mining leases to ‘the Indians belonging and

having tribal rights on the reservation." See also, 25 U.S.C. §§ 319, 320,

321, 398 and 402a. Under the authority of these statutes, the Interior

Department handles hundreds of millions of dollars annually relying on

its view that the references to ‘‘tribes"’ refer to federally-recognized Indian

tribal governments, and no others.

9

The ruling below places the Secretary in a distinctly

awkward position. If he continues to distribute tribal timber

revenues exclusively to recognized tribes and their members

he runs the risk that disenchanted non-members, on or off

the reservation, may bring breach of trust suits in the Claims

Court founded on the Short precedent. On the other hand,

if, to escape liability, he begins to include non-members in

distributions of timber revenues, he will substantially erode

the federal commitment to promoting tribal self-

determination through the vitalization of tribal government.

As this Court noted pointedly in White Mountain Apache

Tribe v. Bracker, 448 U.S. 136, 149 (1980):

Underlying the federal regulatory program rests a poli

of assuring that the profits derived from timber sales will

inure to the benefit of the Tribe, . ..That objective is part

of the general federal policy of encouraging tribes ‘‘to

revitalize their self-government” and to assume control

over their ‘‘business and economic affairs.'’ Mescalero

Apache Tribe v. Jones, 411 U.S., at 151, .. .[T]he Federal

Government has undertaken to regulate the most minute

details of timber production and expressed a firm desire

that the Tribe should retain the benefits derived from the

harvesting and sale of reservation timber.

The import of the Court of Appeals’ ruling for the daily

administration and utilization of Indian forests is, perhaps,

of even greater importance than the Treasury's exposure.

Both allotted and unallotted Indian forests are managed

under regulations recently discussed by this Court in White

Mountain Apache Tribe v. Bracker, supra:

Acting pursuant to this authority [25 U.S.C. § 407], the

tary has promulgated a detailed set of regulations

to govern the harvesting and sale of tribal timber. Among

the stated objectives of the regulations is the

‘‘development of Indian forests by the Indian people for

the p of promoting self-sustaining communities, .

. . Tribes are expressly authorized to establish

commercial enterprises for the harvesting and logging of

tribal timber.

448 U.S. at 146-47. The Secretary's regulations, App. 194,

codified at 25 C.F.R. Part 163, rely heavily on the correctness

of the Secretary's view that federally-recognized tribal

10

governments are the beneficiaries of § 407 timber sales. The

regulations authorize establishing Indian tribal logging enter-

prises ‘“‘with the consent of the authorized tribal represen-

tatives."’ App. at 198, 25 C.F.R. § 163.6(a). Each sale of

unallotted timber requires ‘‘[tJhat consent is given by the

authorized representative of the tribe.’’ App. 199, § 163.7(a).

The authorized representative of the tribe may allow timber

to be sold without advertisement. App. 200, § 163.9. Actual

contracts for the timber must be ‘‘executed by the authoriz-

ed representative of the tribe or tribal corporation.”’ App. 203,

§ 163.13(a). These procedures allow tribes to insist upon

employment preference for tribal members, additional en-

vironmental protection measures and other matters of

significance to the planning and governance of Indian reser-

vations. As noted, this administrative structure is founded

on a statute expressing the federal policy commitment to use

timber on unallotted land to strengthen tribal government.

If the Court of Appeals’ interpretation of 25 U.S.C. § 407

is correct, the Secretary will likely have to modify the

consent, planning and approval processes established by the

regulations. Frequently, the interests of tribal governments

diverge from those of non-enrolled individual Indians, most

of whom, like the plaintiffs in the instant case, do not live

in reservation tribal communities and therefore tend to seek

short-term cash dividends rather than long-range amenities.

The Secretary will probably find it impossible to reconcile

these differences, and may be forced for each reservation to

determine which Indians are “communally concerned’’ with

the resource.* Absent review by this Court, the lower court

decision will erect a serious hindrance to effective

administration of the Indian timber harvest statute.

6. Short held the Secretary cannot avoid liability by relying on his

solicitor's opinion concerning the correct beneficiary. App. 137. Neither can

he do so by relying on a tribal roll made final by 25 U.S.C. § 163, for this

authority was applied to the Hoopa Valley tribal roll in 1952. App. 128.

11

Finally, we ask the Caurt to consider the impact on the

tribes themselves of the § 407 interpretation. Most tribes

with substantial unallotted timber lands rely heavily on

timber income to finance tribal governments. See generally,

White Mountain Apache Tribe v. Bracker, 448 U.S. 136

(1980). On the Hoopa Valley Reservation, since over 80% of

the qualified Short plaintiffs are not residents of the

Reservation, the timber income will quickly be disbursed,

with no real long-range benefit to the Reservation. Similar

results would occur elsewhere. As Congress recognized when

it enacted § 407, it is only the recognized tribes that are truly

“communally concerned”’ with the Reservation. App. 175,

182, 185. See, e.g., White Mountain Apache Tribe v.

Williams, __ F.2d __, Slip op. at 17 (9th Cir. No. 81-5348,

Feb. 7, 1984) (timber statute creates interest of Indian people

in their capacity as a sovereign tribe; no congressional intent

to create individual § 1983 rights).

II. The Court of Appeals’ Interpretation Of The Statutory

Term “Tribe” As A Racial Classification Ignores The

Constitutional Underpinnings For Federal Indian Law

That Compel Treatment of Tribes As Politically - Not

Racially-Defined Groups.

Section 407 of Title 25 provides, as we have emphasized,

that the timber on unallotted lands shall benefit Indians who

are ‘members of the tribe or tribes concerned.’’ The court

below held that “‘[t]he word ‘tribe’ (as related to Indians) has

no fixed, precise or definite meaning’’. App. 7, 719 F.2d at

1137. In Section 407, the court concluded, ‘‘tribe’’ meant ‘‘the

general Indian groups communally concerned with the

proceeds - not an officially organized or recognized Indian

tribe... .’’ App. 7, 719 F.2d at 1136.’

7. Ironically, although the lower court also looked to 25 U.S.C. § 479,

the definition section of the Indian Reorganization Act, as a source of

its definition of ‘‘tribe,’’ App. 7, 719 F.2d at 1137, it did not mention the

§ 479 definition of ‘‘Indians’’, which includes only tribal members,

descendants of such members residing on the reservation in 1934, and

persons of half or more Indian blood. Few Short plaintiffs qualify under

this standard.

12

The court held that qualified Short plaintiffs,

notwithstanding their lack of tribal membership, should be

considered ‘‘members of the tribe or tribes concerned.”

Summary judgment for 2,161 such individuals was affirmed

because they are descendants of allottees of the reservation

and possess a specified blood quantum, even though most

of them have abandoned all tribal relations.* Membership

in a tribe is irrelevant to qualification and the court quite

clearly defined ‘‘tribe’’ in racial and genealogical rather than

political terms. App.20.° This judicial construction is

constitutionally suspect.

The constitutional infirmity here has two aspects. First,

it is elemental that federal Indian law is founded upon the

political relationship between the United States and Indian

tribes. See generally, F. Cohen, Handbook of Federal Indian

Law, at 1 (1982 ed.). The congressional and administrative

practice of dealing with Indians through tribal organizations

is rooted in the language of the Constitution. The Indian

Commerce Clause grants power to Congress ‘‘[t]o regulate

Footnote 7 (Con't)

The Indian Reorganization Act defined ‘‘tribe’’ broadly, of course, so

disorganized ‘‘tribes'’ could reorganize under its provisions. Thereafter,

however, the organized tribes superseded the unorganized classes of ‘‘In-

dians"’ for federal statutory purposes. In any event, the Indian vote was

against application of the Act to the Hoopa Valley Reservation. App. 105.

8. Over 80% of qualified plaintiffs have left, or never were on, the

Reservation according to plaintiffs’ declarations in this case. See Appendix

to Tribe's Request for Review of Trial Judge's Opinion Setting Standards,

at 90 and Exhibits 3-5, filed in the Court of Claims June 25, 1982. Most

plaintiffs are predominantly non-Indian in ancestry. As noted above, the

Government recognizes the Yurok Tribe of the Addition, see 48 Fed. Reg.

56865 (Dec. 23, 1983), but only a few of the Short plaintiffs are involved

in its affairs and it remains unorganized. No tribe is a claimant in Short.

9. The court defined the groups of plaintiffs held to be qualified under

the § 407 standard. App. 21-23, 719 F.2d at 1143-44. The standards include

five classes fashioned by analogy to fragmentary descriptions of how the

Hoopa Valley Tribe determined its tribal membership. Three of the

categories include a blood quantum requirement, and all five categories

require descendancy from Indian individuals who had an historical tie

to the Hoopa Valley Reservation.

13

Commerce . . . with the Indian Tribes.”’ It has long been

recognized that the term ‘“‘tribe’’ as used in the Commerce

Clause and in federal statutes, has a political content. As

this Court said in Montoya v. United States, 180 U.S. 261,

266 (1901), an Indian tribe is ‘‘a body of Indians of the same

or similar race, united in a community under one leadership

or government, and inhabiting a particular though

sometimes ill-defined territory.”

The tribal entity is the medium through which group rights

pass from generation to generation and may be exercised by

individual members. This Court has consequently held that

the Congress may not constitutionally deal with a group of

Indian people as a ‘‘tribe’’ if they lack essential tribal

characteristics:

Of course, it is not meant by this that Congress may bring

a ee ak or body of _—_ within the range of this

wer by arbitrarily calling them an Indian tribe, but on-

y that in respect of distinct! inctly Indian communities the ques-

tions whether, to what extent, and for what time they shall

be recognized and dealt with as dependent tribes requir-

ing the guardianship and protection of the United States

are to be determined by Congress, and not by the courts.

. United States v. Sandoval, 231 U.S. 28, 46 (1913). See also,

Perrin v. United States, 232 U.S. 478, 484-86 (1914); United

States v. John, 437 U.S. 634 (1978).'° The Short plaintiffs

lack the characteristics, political and otherwise, of a tribe;

indeed, they expressly disclaim such characteristics,

10. In John, the State argued the federal government lacked power under

the Indian Commerce Clause to deal with the Mississippi Choctaws

because of a lapse in federal recognition of a tribal organization in

Mississippi. 437 U.S. at 652. In rejecting this argument this Court em-

phasized the original tribal status of the Choctaws, that their tribal status

was clarified by proclamation of a reservation, and approval of the Con-

stitution adopted by the tribe under the Indian Reorganization Act.

Although the Court held the lapse of federal supervision over the tribe

did not destroy federal power to deal with them, the Court relied on the

fact that the Mississippi Choctaws were at all relevant times a tribe. 437

U.S. at 652-53.

14

claiming only individual entitlement. For example, in

Plaintiffs’ Memo in Opposition to Defendant’s Motion to

Substitute the Yurok Tribe as Plaintiff at 22, filed July 27,

1979, plaintiffs said (original emphasis):

Plaintiffs argued then [in 1963]—as they do now—that

they derived their right to share in the income of the

ae Valley Reservation not from membership in a tribe

ut fro

m their common status as Indians or descendants

of Indians who settled on the Reservation.

The trial judge in that proceeding, and ultimately the full

Court of Claims, adopted plaintiffs’ view of their status. App.

31-32, 661 F.2d at 155. It is doubtful that the court can now

arbitrarily call such plaintiffs a ‘‘tribe’’, consistent with

Congress’ Commerce Clause power. See also, Santa Clar.:

Pueblo v. Martinez, 436 U.S. 49 (1978).

Second, Congressional power to deal with Indians as a racial,

as opposed to a political group, is constrained by the Equal

Protection guaranties implicit in the Due Process Clause of

the Fifth Amendment. Several recent cases have considered

whether federal statutes singling out tribal Indians as a class

violate this constitutional standard. This Court has rejected

these challenges, but only because the constitutionally-

recognized status of tribes as separate political communities

distinguishes Indians who are members of tribes from other

classes of Indians and other persons. Thus, in United States

uv. Antelope, the Court stated that

[FJederal regulation of Indian affairs is not based upon

impermissible classifications. Rather, such regulation is

rooted in the unique status of Indians as ‘a separate

people’ with their own political institutions. Federal

regulation of tribes, therefore, is governance of once

sovereign political communities; it is not to be viewed as

legislation of a “ ‘racial’ group consisting of ‘Indians’ ’’.

430 U.S. 641, 646 (1977). See also id. at 646, n.7."' Similarly,

in Morton v. Mancari, 417 U.S. 535 (1974), the Court upheld

11. Unlike this Court’s view in Antelope that Indians who had

abandoned tribal life or were ‘‘terminated'’ by statute were not within

15

against an Equal Protection challenge an employment

preference extended to Indians by the Bureau of Indian

Affairs pursuant to the Indian Reorganization Act. The

Court took pains to emphasize, however, that the preference

was not directed toward a “racial group consisting of

‘Indians’’’ but applied only to members of ‘‘federally-

recognized’’ tribes. The preference thus excluded many

individuals who could be racially ‘classified as ‘Indians.’ ”’

Id. at 553-54, n.24."

It is apparent that racial distinctions, as opposed to

political ones, are subject to much stricter constitutional

scrutiny. E.g., Keyes v. School Dist. No. 1, 413 U.S. 189,

195-98 (1973); Korematsu v. United States, 323 U.S. 214, 216

(1944). Thus, the court creates constitutional mischief, since

regulatory programs based on the unique status of members

of federally-recognized tribes are not subject to such strict

scrutiny, but will be upheld so long as the special treatment

‘‘can be tied rationally to the fulfillment of Congress’ unique

obligations toward Indians.’ Morton v. Mancari, 417 U.S.

at 555 (1974); accord, Delaware Tribal Business Committee

v. Weeks, 430 U.S. 73, 83-85 (1977).

In Short, the Court of Appeals attributed to Congress an

intention to act inconsistently with the dominant federal

policy of furthering tribal self-determination. See generally,

White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 149

Footnote 11 (Con't)

the reach of the Major Crimes Act, 430 U.S. at 646, n.7, the lower court

held that “Indians” who had abandoned ties with the Hoopa Valley Reser-

vation nevertheless remained beneficiaries of the tribal timber statute. App.

17, 719 F.2d at 1141; but see App. 165, 25 C.F.R. §§ 111.2, 111.4.

12. See also, Washington v. Colville Confederated Tribes, 447 U.S. 134,

160-61 (1980); United States v. Washington, 520 F.2d 676, 682, n.1 (9th

Cir. 1975); cert. denied, 423 U.S. 1086 (1976).

16

(1980); Bryan v. Itasca County, 426 U.S. 373, 388, n.14 (1976);

Indian Self-Determination and Education Assistance Act of

1974, P.L. 93-638, 25 U.S.C. § 450 et seg. Tribal rights are

to be denied the federally-recognized tribe and distributed

to individual non-tribal Indians. The reference to ‘‘tribe’’ in

§ 407 should not be read in a way that creates such grave

constitutional problems under the Commerce Clause and the

Due Process Clause.

In other contexts, the Courts of Appeals have carefully

defined a threshold, which includes a political component,

to qualify a group as a “‘tribe’’ for federal statutory or treaty

purposes, thereby evading such problems. In the land claims

cases arising under 25 U.S.C. § 177 and in the treaty fishing

cases, the courts have insisted that to constitute a ‘‘tribe”’

the group must survive as a distinct community and exercise

political control over a territory even if ill-defined. See e.g.,

Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 582-85

(1st Cir.), cert. denied, 444 U.S. 866 (1979); United States

v. Washington, 641 F.2d 1368, 1373 (9th Cir., 1981), cert.

denied, 454 U.S. 1143 (1982). Since the rulings of the Short

court are now based on § 407, plaintiffs seek the rights of

a ‘“‘tribe’’, yet they do not meet the threshold political

characteristics of groups which can transmit, exercise or

assert ‘tribal’ rights as ‘‘tribes.”’

To allow judicial definition of “tribes” in racial rather than

political terms, is to set dangerous precedent. There is no

reason to impute to Congress an intention to abandon the

protective umbrella inherent in the traditional definition of

“tribe”’ in favor of a vulnerable racially-defined one. Further,

the constitutional quagmire created here is easily avoided. In

United States v. Sandoval, 231 U.S. at 47 (1913) this Court

held:

As was said in United States v. Holliday, 3 Wall. 407, 419:

‘In reference to all matters of this kind, it is the rule of

ne oo Fed follow the oe of the executive von other

politi epartments o government, w more

pone Soe duty it is to determine such affairs. If by them

are recognized as a tribe, this court must

do the same. ue they are a tribe of Indians, then, by the

17

Constitution of the United States, they are placed, for cer-

tain purposes, within the control of the laws of Congress.”’

Congress and the Executive have explicitly provided

avenues by which a group which seeks tribal rights can be

determined to be a tribe. Recently, the Department of the

Interior adopted detailed regulations establishing procedures

for determining that an American Indian group exists as an

Indian tribe. These regulations look to evidence of the

group's continuous Indian identity, long-standing

relationships with other governments, residence in a specific

area viewed as distinctly Indian, maintenance of tribal

political influence in accordance with governing documents,

lists of members, and other attributes. App. 156-58, 25 C.F.R.

§ 83.7. But the plaintiffs in Short have not sought tribal

status by these means.

Deference to the Department of the Interior's primary

jurisdiction over identification of tribes not only excuses

federal judges from the hazardous task of fashioning

standards for determining the existence of tribal status, but

also allows the Executive Branch to uphold its trust duty

to protect the rights of those Indians who really compose

tribes. If the concept of ‘‘tribe”’ has lost ‘‘definite meaning,’’

as the lower court concluded, App. 7, 719 F.2d at 1137, it

will be impossible to prevent multiple and inconsistent

adjudication of tribal rights in suits brought by non-tribal

individuals. In fact, it was precisely this danger that led the

First Circuit Court of Appeals recently to adhere in James

uv. Watt, 716 F.2d 71, 72 (1st Cir. 1983) cert. pending in No.

83-623, to an earlier ruling that the Indian Non-Intercourse

Act granted land claims causes of action to tribes that

individuals cannot assert solely on their own behalf. Epps

v. Andrus, 611 F.2d 915, 917 (1st Cir. 1979).

In § 407 Congress explicitly referred to rights of ‘‘tribes,"’

a term that does not exist in a vacuum. To allow the lower

court to redefine that concept in racial terms and allow that

class to assert rights and privileges which flow from tribal

citizenship, is to ignore the constitutional threshold for

18

Government-Indian relations. It sets a dangerous and

disruptive precedent for other areas of the law where tribal

rights are asserted.

III. The Court Of Appeals’ Ruling Ignores The Mitchell II

uirement That To Present A Valid Tucker Act

C The Source Of Substantive Law Relied Upon

Must Be Fairly Interpreted As Mandating

Compensation For The Damages Sustained.

This case substantially broadens access to the new Claims

Court by expansively construing 28 U.S.C. § 1491. In

Mitchell IT, this Court, relying upon United States v. Testan,

424 U.S. 392, 400 (1976) and Eastport S.S. Corp. v. United

States, 372 F.2d 1002, 1009 (Ct. Cl. 1967) reconfirmed that

to state a claim cognizable under the Tucker Act, the

claimant must demonstrate that the source of substantive

law relied upon ‘‘can fairly be interpreted as mandating

compensation by the Federal Government for the damages

sustained.’’ __U.S.__, 103 S. Ct. at 2968. Thus, although the

Tucker Act waives the sovereign immunity of the United

States, in order to state a valid Tucker Act claim “founded

... upon... any Act of Congress” the court must determine

whether the statute

can fairly be interpreted as mandating compensation for

damages sustained as a result of a breach of the duties

[it] impose{s].

Id. at 2969. This is a subject matter jurisdiction inquiry. /d.

at 2974.

The Court of Appeals’ attempt, in response to the motions

to dismiss, to squeeze Short into conformity with the Mitchell

II mandate merely brings the court back to the error rejected

by this Court in Mitchell J. One statute has emerged as the

jurisdictional and substantive heart of the case, 25 U.S.C.

§ 407, yet it was not mentioned by the court until 1983, 10

years after the Court of Claims ruled that ‘‘the source of all

[plaintiffs'] claims’’ was the 1864 Act. App. 55. The Court

of Appeals now recognizes that the 1864 Act does not meet

the Mitchell II test because it does not mandate

19

compensation to anybody and could not command payment

of timber revenues to plaintiffs in Short because it was

enacted 46 years before Congress conveyed the right to

reservation timber sale proceeds. App. 6; see, Mitchell I, 445

U.S. at 545 (1980); Hynes v. Grimes Packing Co., 337 U.S.

86, 103 (1949). But while the court disclaimed reliance on the

1864 Act as the jurisdictional basis of its Short rulings, it

nevertheless adhered to the analysis founded upon that

discredited statute both to put a gloss on its interpretation

of § 407, and as a substantive basis for recovery as ‘‘law of

this case.’’ App. 8, 719 F.2d at 1137.

Thus, in support of its conclusion that the term ‘“‘tribe’’

in § 407 does not mean ‘‘an officially organized or recognized

Indian tribe’, App. 6-7, 719 F.2d at 1136, the court notes

that this ‘‘is the proper interpretation if, as has already been

held, qualified plaintiffs are entitled to recover a proper share

of the proceeds.’’ Jd. But that conclusion, of course, was

founded upon the 1864 Act without reference to the rights

created or duties imposed by § 407. Such circular reasoning

violates the letter and spirit of Mitchell II.

This Court’s admonition that the claimant must point to

a statute which can be fairly interpreted as mandating com-

pensation for the damages sustained punctures the lower

court’s ruling. With respect to statutory claims, Congress

in the Tucker Act has waived the sovereign immunity of the

United States only as to claims truly ‘‘founded’’ upon an act

of Congress. In Mitchell II this Court cited with approval

Eastport S.S. Corp. v. United States, 372 F.2d 1002 (Ct. Cl.

1967). There the court explained,

[T]he historical boundaries of our competence have

excluded those instances in which the basis of the federal

claim - be it the Constitution, a statute, or a regulation

- cannot be held to command, in itself and as correctly

a the pa t of ge | to the claimant, but

in which some other principle of damages has to be

invoked for recovery.

Id. at 1008. But it is painfully apparent that § 407, although

jit may mandate payment to tribes or their members, does

not mandate payment to plaintiffs. Liability is really being

20

imposed, not because of a Secretarial breach of the duty im-

posed by the substantive statute now relied upon, as Mitchell

II requires, but rather because the court had previously ruled

that the Secretary violated another statute - the 1864 Act, a

statute which imposes no relevant duty. The lower court’s at-

tempted bootstrap compliance with Mitchell IJ using law of

the case principles is improper and a significant extension of

the limited Tucker Act jurisdiction."* The lower court's

substitution of a new substantive and jurisdictional founda-

tion for Short while leaving intact and binding on the parties

all the previous Short rulings, is reminiscent of the magician’s

“tablecloth” trick: with a deft flick of his wrist, he removes

the tablecloth, leaving the china, silver and glassware un-

disturbed on the table.

This is no mere technical defect. The lower court’s analysis

is contaminated by matters not germane to § 407 and ignores

other factors relevant to what “‘tribes’’ can be considered

‘concerned’ with the portion of the Reservation at issue and

who are the members of those tribes. When the question

whether § 407 can support relief in Short is squarely

addressed, as it should have been but was not, it compels

a different analysis, different evidence, and, the Tribe insists,

a different result.

Section 407 does not mandate payment to non-tribal

plaintiffs.'* From the outset of the Short litigation, plaintiffs

13. Although this Court spoke in Mitchell 1] of the Tucker Act as being

jurisdictional, it is readily apparent that it does not operate in the same

jurisdictional sense as does, for example, 28 U.S.C. § 1332, the diversity

of citizenship statute. Under that statute, once a plaintiff demonstrates

diversity and the required amount in controversy, he is free to assert a

claim based on federal or state statutory law, common law, or principles

of equity. The Tucker Act, however, operates quite distinctly since the

sovereign immunity of the United States is implicated. In order to come

within the waiver of sovereign immunity, the claimant must demonstrate

a claim founded upon an act of Congress that can be fairly read as

mandating compensation to plaintiff for the breach alleged.

14. Much less does 31 U.S.C. § 1321 mandate payment of deposited

timber revenues to plaintiffs. The Court of Appeals’ reliance on § 1321

as an alternate jurisdictional basis, App. 8, merely resurrects the erroneous

21

conceded that they were not members of the Hoopa Valley

Tribe, not eligible for membership in the Tribe, and that they

did not assert tribal rights from any other tribe. The

Secretary of the Interior has literally followed the statute's

mandate by making available the proceeds of timber sales

on unallotted Hoopa Valley Indian Reservation lands to ine

only organized and federally recognized tribe of the Reser-

vation, the Hoopa Valley Indian Tribe. Yet liability is im-

posed. The lower court thereby strips the ‘‘fair interpreta-

tion’’ requirement for jurisdiction over statutory claims of

all meaning.'®

CONCLUSION

For the reascas set forth herein, a writ of certiorari should

be granted.

Respectfully submitted,

Thomas P. Schlosser

Attorney for Petitioner

March 3, 1984.

Footnote 14 (Con't)

analysis soundly rejected by this Court in Mitchell 1. While § 1321, like

the General Allotment Act in Mitchell J, creates a trust, it creates no rights

or duties relevant to the claim presented here. See Mitchell 1], U.S...

103 S. Ct. 2971-72 (1983).

15. The Court of Appeals’ attempt simultaneously to disclaim the 1864

Act as a jurisdictional base and preserve the substantive rulings based

upon it, carries the court into numerous distortions and inconsistencies.

Thus, notwithstanding the fact that the ultimate issue in Short now

becomes whether plaintiffs qualify as ‘members of the tribe or tribes con-

cerned’ under § 407, the Court of Appeals continues to insist that on its

merits this case “is a matter of individual entitlement, not of tribal

membership... .’ App. 9. 719 F.2d at 1137. Similarly, the court retains

its earlier entitlen.ent ruling that the Hoopa tribal standards are to be

used as a general guide to determine entitlement. The court has therefore

created the anomalous situation that it is using Hoopa tribal standards

to determine what non-members of the Tribe should be considered

22

Footnote 15 (Con't)

“members of the tribe or tribes concerned" under § 407. Surely, this is

self-contradictory. Also compare App. 7 with App. 10, n.10, and App. 20.

Furthermore. the court declares that nothing in its opinion interferes

in any way with the decision of the Yuroks to establish a tribe and

if they do so ‘they are free to vote any membership standard they

desire.’' App. 20, 719 F.2d at 1143. If this were to occur, however, one

must wonder whether the members of the Yurok Tribe would be en-

titled to participate in these § 407 proceeds or whether the Secretary

would be bound to say that Short concerned individual entitiement.

and that only qualifying Short plaintiffs, regardless of non-membership

in any tribe, are entitled to recover. One interpretation is inconsistent

with the Short holding and the other violates the plain meaning of § 407.