UNITED STATES OF AMERICA, PETITIONER V. MARY DANN AND CARRIE DANN No. 83-1476 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-29a) is reported at 706 F.2d 919. The judgment order of the district court (App. B, infra, 30a-32a) is not reported. A prior opinion of the court of appeals is reported at 572 F.2d 222. JURISDICTION The judgment of the court of appeals (App. C, infra, 33a) was entered on May 19, 1983. A petition for rehearing was denied on November 7, 1983 (see App. D, infra, 34a). On January 27, 1984, Justice Rehnquist entered an order extending the time for filing a petition for a writ of certiorari through March 6, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED Section 22 of the Indian Claims Commission Act, ch. 959, 60 Stat. 1055, 25 U.S.C. (1976 ed.) 70u /1/ provides: (a) When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims, and there is authorized to be appropriated such sums as are necessary to pay the final determination of the Commission. The payment of any claim, after its determination in accordance with this (Act), shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy. (b) A final determination against a claimant made and reported in accordance with this (Act) shall forever bar any further claim or demand against the United States arising out of the matter involved in the controversy. QUESTION PRESENTED The Indian Claims Commission entered a final judgment awarding the "Western Shoshone Indentifiable Group" of Indians in excess of $26 million as damages for the extinguishment of their aboriginal title to over 24 million acres in Nevada and California. Section 22(a) of the 1946 Indian Claims Commission Act provides that upon "payment of any claim" adjudicated by the Commission, the United States receives a "full discharge" of "all claims and demands touching any of the matters involved in the controversy." Funds to pay the Western Shoshone judgment have been automatically appropriated pursuant to 31 U.S.C. (Supp. V) 724a. The judgment fund has been deposited in an interest-bearing trust account in the Treasury for the benefit of the Western Shoshones. However, the proceeds have not yet been distributed to individual Indians or committed to any other designated tribal purpose, pursuant to a plan established under the Distribution of Judgment Funds Act, 25 U.S.C. 1401. The question presented is whether, under these circumstances, the Western Shoshone remain free to assert, in collateral litigation, that aboriginal title to lands covered by the Claims Commission award has never been extinguished. STATEMENT In this action, the court of appeals held that neither entry of a final judgment of the Indian Claims Commission awarding an Indian tribal group compensation for the extinguishment of their aboriginal title to land, nor the actual deposit of funds appropriated to pay the judgment into a trust account for the tribal group maintained in the Treasury, bars a member of the beneficially interested tribe from asserting, in collateral litigation, that aboriginal title has not been extinguished. The court further ruled that, contrary to the premise of the Indian Claims Commission proceedings maintained by the tribal group in which the claims award was made, the United States has never extinguished their aboriginal title to the lands in question. 1. The United States commenced this trespass action in 1974 by filing a complaint in the United States District Court for the District of Nevada alleging that respondents Mary Dann and Carrie Dann were grazing livestock on eight sections of federal public lands in the Elko Grazing District in Nevada without a grazing permit from the Bureau of Land Management (BLM). The complaint alleged that the unauthorized grazing constituted a violation of regulations issued by the Secretary of the Interior pursuant to the Taylor Grazing Act, 43 U.S.C. 315 et seq. The government sought an injunction barring the Danns from grazing their animals without a BLM grazing permit and also requested damages for the past grazing trespasses. Respondents answered the trespass charge by asserting that BLM lacked authority to administer the lands because "said lands are beneficially owned by the defendants and other members of the Western Shoshone Tribe." The answer requested that the court enter judgment declaring that "the defendants are members of the Western Shoshone Tribe of Indians" and that the "the Western Shoshone tribes of Indians are the recognized beneficial owners of the land" described in the complaint. 2. The lands occupied by respondents are a small part of a much larger area that was the subject of proceedings before the Indian Claims Commission at the time that the government's complaint in this trespass action was filed. The Indian Claims Commission had been established in 1946, in order to provide a monetary damages remedy against the United States for wrongs allegedly committed by the United States in its dealings with the Indian tribes. The Commission was authorized to "hear and determine" claims on behalf of any "Indian tribe, band or other identifiable group of American Indians residing within the territorial limits of the United States." 25 U.S.C. (1976 ed.) 70a. Claims within the Commission's jurisdiction included, at one extreme, some that were relatively conventional in nature, such as those based upon the Constitution, federal laws, treaties or executive orders (25 U.S.C. (1976 ed.) 70a(1); compare 28 U.S.C. (Supp. V) 1491), and, at the other extreme, some categories of claims as to which the United States had not consented to suit by non-Indian claimants: "claims based upon upon fair and honorable dealings that are not recognized by any existing rule of law or equity." 25 U.S.C. (1976 ed.) 70a(5). In the Claims Commission proceedings, originally filed in 1951, various Shoshone tribal groups sought, through representative parties, to recover damages for the loss of aboriginal title that they claimed to have possessed to lands located in Nevada, California, Idaho, Utah, Wyoming and Colorado. The Commission decided to consider the claims of the constituent bands or identifiable groups of the larger Shoshone Nation individually. The Commission found that the Western Shoshone constituted a separate identifiable group for the purpose of presenting a claim against the United States. It also found that the Temoak Band of Shoshone Indians, a federally recognized band of Western Shoshones organized under the Indian Reorganization Act of 1934, 25 U.S.C. 461 et seq., was a proper representative of the Western Shoshone Identifiable group. Thus, the Temoak Band was authorized to maintain, on behalf of the entire group, a claim for damages for the extinguishment of aboriginal tribe to 22 million acres in Nevada and 2 million adjoining acres located in California that had allegedly been occupied by the Western Shoshone. /2/ The basis for the claim, as set out in the claimant's Proposed Findings of Fact and Brief filed in the claims proceeding (at pages 2-3) was that the Western Shoshones' aboriginal lands had been "taken from them from time to time by" the United States and the United States "ha(d) obtained their lands and extinguished their original Indian title without compensation and under circumstances which did not comport with fair and honorable dealings * * *." Following a trial and briefing of the land title issues, the Indian Claims Commission entered an interlocutory order on October 16, 1962, in which it found that the Western Shoshones had held aboriginal title to 24,396,403 acres of land in the present States of California and Nevada. Shoshone Tribe v. United States, 11 Indian Cl. Comm'n 387, 413-414 (1962). The Commission found that title to the Shoshone lands in California was extinguished on March 3, 1853. Id. at 415. With respect to the bulk of the lands, located in Nevada, the Commission found that aboriginal title had been extinguished over a period of years through "gradual encroachment by white, settlers and others, and the acquisition, disposition or taking of the (Western Shoshones') lands by the United States for its own use and benefit, or the use and benefit of its citizens." Id. at 416. Because it could not then identify a precise date for these actions as to particular parcels of land, the Commission reserved the question of the date of extinguishment of Indian title to the Nevada lands for further proceedings. Ibid. In order to avoid complex litigation as to the extinguishment date for separate parcels, the Western Shoshones and the United States stipulated to an average extinguishment date of July 1, 1872, to serve as the valuation date for determining compensation due for the Nevada lands. The stipulation was approved by the Commission. See Western Shoshone Identifiable Group v. United States, 29 Indian Cl. Comm'n 5, 7 (1972). Following a trial in 1967, the Commission determined the fair market value of the Nevada lands acquired from the Western Shoshones in 1872 to have been $21,350,000. Id. at 124. 3. Subsequently, in April 1974, while the parties were awaiting rulings by the Commission on issues that had to be resolved prior to entry of a final judgment, a group identified as the Western Shoshone Legal Defense and Education Association, with which the present respondents were associated, /3/ sought to intervene in the claims proceedings. The would-be intervenor sought to amend the claim to delete the request for an award covering certain acres including the lands at issue in this case, as to which it asserted that aboriginal title remained unextinguished. The intervenor also sought a stay of the claims proceedings pending a decision in this case, which had by then been filed in the district court. The Commission denied the motion to intervene, concluding, inter alia, that the question of extinguishment of aboriginal title had been presented to it and had been decided by it in its earlier ruling. Western Shoshone Identifiable Group v. United States, 35 Indian Cl. Comm'n 457, 465-471 (1975). The Court of Claims affirmed that ruling in Western Shoshone Legal Defense and Education Ass'n v. United States, 531 F.2d 495, 500 (1976), /4/ and this Court denied certiorari. 429 U.S. 885 (1976). Throughout these proceedings, the Western Shoshone Identifiable Group adhered to the position that the extinguishment issue had been decided, and correctly so, by the Commission. /5/ 4. Before further action could occur in the claims proceedings, the district court, on January 5, 1977, entered summary judgment in favor of the United States in the instant trespass action. The district court held that the Danns' assertion that aboriginal title to the lands they occupied remained unextinguished was barred by the collateral estoppel effect of the Indian Claims Commission's 1962 ruling that the United States had extinguished the aboriginal title of the Western Shoshones to their former lands in Nevada. United States v. Mary Dann and Carrie Dann, Civ. No. R-74-60 BRT (D. Nev. Jan. 5, 1977). The court of appeals reversed, United States v. Dann (Dann I), 572 F.2d 222 (9th Cir. 1978). The court of appeals held that res judicata (claim preclusion) had no application because the Claims Commission's ruling was interlocutory (572 F.2d at 225). In that connection, the court of appeals observed that the statutory finality provision of the Indian Claims Commission Act, Section 22(a), 25 U.S.C. (1976 ed.) 70u(a) did not become operative until a final judgment was entered and payment made (572 F.2d at 226). The court of appeals also held that collateral estoppel could in no event be applied to the extinguishment question, asserting that "(w)hatever may have been the implicit assumptions of both the United States and the Shoshone Tribes during the litigation before the (Commission), the extinguishment question was not necessarily in issue, it was not actually litigated and it has not been decided" (572 F.2d at 226-227 (footnote omitted)). The trespass case was accordingly remanded to district court for further proceedings. 5. Thereafter, events moved forward again in the Commission proceedings. In November 1976, the Temoak Band, which had retained new counsel, reversed its earlier position, and moved the Commission to stay all proceedings pending a determination elsewhere of the Western Shoshones' claims that they still retained aboriginal title to their former territory in Nevada. The attempt to delay the Commission proceeding, however, proved futile. On August 15, 1977, the Commission denied the Western Shoshones motion for a stay and entered final judgment, awarding them in excess of $26 million. Western Shoshone Identifiable Group v. United States, 40 Indian Cl. Comm'n 305 (1977). The Court of Claims affirmed. Temoak Band of Western Shoshone Indians v. United States, 593 F.2d 994 (1979). The Court emphasized the tardiness of the stay application that effected an abrupt reversal of over 25 years of litigation strategy by the Western Shoshones, and the fact that the Shoshones' were not willing simply to abandon their claim outright. The Court of Claims also noted (593 F.2d at 999) that, subsequent to its prior decision upholding the denial of Shoshone dissidents' motion to intervene (see page 7, supra), Congress had amended the standing appropriation covering Court of Claims judgments, 31 U.S.C. 724a, so as to extend its coverage to Indian Claims Commission judgments. Accordingly, it no longer remained possible for the Western Shoshones to forestall operation of the preclusion provision of the Indian Claims Commission Act, Section 22(a), simply by persuading Congress to defer an appropriation. Compare page 7 note 4, supra. But the Court of Claims emphasized that, even after the judgment had been appropriated, Congress's plenary power to deal with Indians was sufficient to allow it to adjust relations between the Western Shoshone and the United States in whatever manner it might deem appropriate, commenting, the "essential point of the matter is that the (Western Shoshones') true appeal is to legislative grace, not as of right to this court" (593 F.2d at 999). This Court then denied certiorari. 444 U.S. 973 (1979). Although the Court of Claims had entered a temporary stay of its final order so as to allow the Secretary of the Interior to consider whether to support legislation establishing a reservation for the Western Shoshones, the stay was allowed to expire without action by the Secretary, who subsequently announced that he would not support an effort to establish a reservation. On December 6, 1979, The Clerk of the Court of Claims certified the Commission's final award to the General Accounting Office for payment. Pursuant to the amended 31 U.S.C. (Supp. V) 724a, the award was automatically appropriated and it was deposited in an interest-bearing trust account in the United States Treasury for the Western Shoshone Identifiable Group. 6. On April 29, 1980, the district court entered final judgment in the Dann trespass case (App., infra, 33a). The district court, observing that this Court had denied certiorari in the claims proceedings and that the Commission's award had been certified for payment, held that the Judgment of the Commission had become final and that "the legal effect of the judgment for the purposes of the instant case is to extinguish the aboriginal Indian title to the lands of the Western Shoshone Indians upon which (respondents) assert the right to graze livestock * * *" (App., infra, 31a). The court stated, however, that the Danns had not been in trespass before December 6, 1979, because "(u)ntil the Indian Claims Commission judgment became final, such aboriginal Indian title had not been extinguished" (ibid.). The district court accordingly granted the government's request for injunctive relief but denied damages for past trespasses (ibid.). Both parties disagreed with this disposition and appealed. Respondents argued that collateral estoppel had no application to the extinguishment issue. The government argued that because of entry of final judgment in the claims proceeding, res judicata (claim preclusion) and collateral estoppel barred the respondents' assertion that the Western Shoshones retain aboriginal title to their former territory. In addition, because the award had been paid into a trust fund for the Western Shoshones, the government invoked the preclusive effect of Section 22(a) of the Indian Claims Commission Act, which provides that "payment of any claim" determined by the Commission "shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy." On its cross appeal, the government argued that the preclusive effect of the Claims Commission decision and award established that extinguishment of the aboriginal title had occurred in the past, not merely as of the date of payment of the claims award. In the alternative, the government argued that various discrete federal actions had, in fact, extinguished aboriginal title. Respondents challenged the government's extinguishment arguments, and denied that any preclusion doctrine was applicable. With regard to the effect of Section 22, respondents contended on appeal (for the first time in the litigation) that the award had not been "paid" for preclusion purposes because, although it had been deposited into the Treasury on behalf of the Western Shoshones, it had not yet been distributed to individual Western Shoshones pursuant to the Distribution of Judgment Funds Act 25 U.S.C. 1401 et seq. (DJFA). b. The court of appeals reversed, ruling in favor of respondents on all issues. Adhering to its ruling in Dann I, the court of appeals held that collateral estoppel was inapplicable to the extinguishment issue, describing that issue as one not actually litigated in the claims proceeding (App., infra, 5a-7a). The court of appeals also declined to apply res judicata, reasoning that Section 22(a) of the Indian Claims Commission Act was intended to exhaustively set forth "the entire bar effect of a favorable claim determination" and thus to supplant the judge-made preclusion doctrine (App., infra, 7a-10a). But the court of appeals also found the statutory bar of Section 22(a) inapplicable (App., infra, 10a-16a). The court acknowledged that the award had been automatically appropriated and had been credited to an interest-bearing Treasury account in the name of the Western Shoshone. Nevertheless, because the funds had not been distributed to individual Western Shoshone, or applied to collective tribal purposes pursuant to the DJFA, the court concluded that the Western Shoshones' claim had not been paid for purposes of the statutory preclusion provision. The court's reasoning rested in part upon the view that the ordinary meaning of "payment" does not comprehend a "transfer of funds that leaves such significant blocks in the way of delivery to the payee" (App., infra, 12a). But the court purported to rest its interpretation of Section 22(a) primarily upon the Court of Claims' comment in its 1976 decision in Western Shoshone Legal Defense and Education Ass'n (see page 7 & note 4, supra) that because the bar of Section 22 would not fall until payment of the claim was made, the majority of the Western Shoshone, if so inclined, could still seek, after entry of a final judgment, to have Congress defer an appropriation, thereby averting preclusion. The court of appeals recognized (App., infra, 13a-14a), that this comment was based upon the fact that in 1976 no standing appropriation had as yet been made applicable to judgments of the Claims Commission, and that Congress had subsequently made explicit provision for just such an arrangement. Yet the court refused to "conclude * * * that Congress by its change in the appropriation process intended to yield its final authority to affect the nature of an award before it acquires bar effect under Section 70u" (App., infra, 13a). Reasoning that the purpose of automatic appropriation of judgments was purely to eliminate a ministerial task, the court of appeals decided that Congress must have intended that the "payment" bar of Section 22 not go into effect until a plan for distribution of the judgment funds had been approved by Congress pursuant to the DJFA (App., infra, 12a, 13a-14a). The court of appeals acknowledged that, in its 1979 decision in Temoak Band of Western Shoshone Indians (see page 9, supra), the Court of Claims had used "language (that) does suggest that payment might take place in the absence of congressional action" (App., infra, 9a). But because the Court of Claims had acknowledged that the Western Shoshones could seek relief from Congress even after the judgment had been paid, the Court reasoned that "this channel of congressional relief is best kept open by an interpretation of Section 70u that does not bar collateral litigation, which might produce results highly informative in making its decision, until Congress has exercised its final discretion in dealing with the claim itself" (App., infra, 15a). The court of appeals also rejected each of the government's arguments that, wholly apart from any preclusive effect of the claims judgment and award, the aboriginal title of Western Shoshone to the lands at issue here had in fact been extinguished (App., infra, 16a-28a). The court held that neither opening of the former Shoshone lands to settlement under the homestead laws or other public land laws, the establishment of the Duck Valley Reservation for the Western Shoshone in 1877, the administration of the lands occupied by respondents (and much of the remaining lands covered by the claims proceedings) by the BLM pursuant to the Taylor Grazing Act, 43 U.S.C. 315 et seq., nor the cumulative impact of all of these developments was sufficient to extinguish the aboriginal title of the Western Shoshone to the lands that are the subject of the trespass action. REASONS FOR GRANTING THE PETITION The court of appeals' crabbed interpretation of Section 22(a) of the Indian Claims Commission Act is plainly erroneous. The view that Section 22(a) should be interpreted to "preserve" for Congress the opportunity to take a final look at the merits of a claim underlying an Indian Claims Commission judgment for which funds have been appropriated and paid, in trust, into an interest-bearing Treasury account, is wholly contrary to the purposes of the Indian Claims Commission Act. It is also unsupported by any legislative history accompanying the Distribution of Judgment Funds Act or the amendments by which Congress made a standing appropriation applicable to final judgments of the Indian Claims Commission. The court of appeals' interpretation of Section 22(a) is also squarely contrary to the decision of the Court of Claims in Temoak Band of Western Shoshones v. United States, 593 F.2d 994, cert. denied, 444 U.S. 973 (1979). The court of appeals' decision fails, moreover, to observe a fundamental distinction between the role of the United States as a judgment debtor upon a claim adjudicated adversely to the United States, and the analytically distinct role of the United States as trustee of the tribal judgment fund created by payment of such a judgment. The decision below also gratuitously casts a substantial cloud upon federal title to an enormous land area in Nevada. Federal administration of this land area is placed in a state of limbo. The decision thus reflects a failure to heed this Court's recent admonitions stressing the importance of the preclusion doctrines that protect settled land titles. 1. Section 22(a) of the Indian Claims Commission Act states in relevant part: "The payment of any claim, after its determination in accordance with this (Act), shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy." There simply is no adeuqate basis for the court of appeals' conclusion that "payment" does not occur within the meaning of Section 22(a) until such time as a final distribution plan has gone into effect under the Distribution of Judgment Funds Act. Under the statutory framework in effect at the time the judgment of the Indian Claims Commission was certified to the General Accounting Office for payment, the amount of the award was automatically transferred (pursuant to an unlimited standing appropriation) into an interest bearing trust account maintained on behalf of the Western Shoshone Identifiable Group in the Treasury. From that point onward, the Western Shoshones acquired a vested property right to the beneficial ownership of the judgment fund. At that juncture, the role of the government was converted from that of the Indians' judgment debtor to its familiar role as trustee of Indian property. See, generally, United States v. Sioux Nation of Indians, 448 U.S. 371, 407-409 (1980). Although the Congress and the Secretary must still determine, pursuant to the protective framework established by the Distribution of Judgment Funds Act of 1973, how such a judgment fund is to be parceled out to individual Indians or expended for the collective benefit of the tribal entity, the Unit-d States may not convert the trust fund to its own purposes without incurring a Fifth Amendment obligation to pay compensation. Sioux Nation, 448 U.S. at 408-409; Shoshone Tribe v. United States, 299 U.S. 476 (1937). Similarly, the United States may generally be held accountable thereafter for mismanagement of the trust fund. See United States v. Mitchell, No. 81-1748 (June 27, 1983), slip op. 19; United States v. Shoshone Tribe of Indians, 304 U.S. 111, 115-116 (1938); Angle v. United States, 709 F.2d 570, 574-575 (9th Cir. 1983); Rogers v. United States, 697 F.2d 886, 890 (9th Cir. 1983). The United States has also obligated itself to earn or pay interest upon such tribal funds. See 25 U.S.C. 161, 161a, 162a; United States v. Mitchell, slip op. 17 n.24, 18 n.29. In short, when the United States formulates, approves and carries out a distribution plan pursuant to the Distribution of Judgment Funds Act, it is not then making any "payment" of a claim by an Indian tribe, band, or group. Rather, it is simply fulfilling its role as trustee to oversee the use of assets that are already in tribal ownership. This Court previously has observed the very distinction -- overlooked by the court below -- between the role of the United States as a judgment debtor to an Indian tribe, which terminates upon the appropriation of a judgment fund by Congress, and the United States' role as a fiduciary for the tribe in overseeing the use of the judgment fund, which first commences upon appropriation. In Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977), a challenge to distribution arrangements legislated by Congress for an award of the Indian Claims Commission, the Court explicitly treated the judgment fund, once appropriated by Congress, as tribal property: "both the Commission award and the appropriation by Congress were the means of compensating that tribal entity for the wrong done to it." Id. at 85. Thereafter, "(a)s tribal property, the appropriated funds were subject to the exercise by Congress of its traditional broad authority over the management and distribution of lands and property held by recognized tribes." Ibid. 2.a. Examination of the legislative history of the Indian Claims Commission Act and subsequently enacted statutes that bear upon the process of payment of Commission judgments and their ultimate distribution confirms that Congress did not intend to reserve to itself the opportunity to take a "final look" (App., infra, 12a) at the merits of the underlying claim that the court of appeals' decision "preserves" by treating a judgment as unpaid until a distribution plan is accepted by Congress. Therefore, by placing responsibility for deciding whether the payment bar of Section 22 should be raised against the Western Shoshones' claim that they retain aboriginal title in the hands of Congress itself, the court of appeals' decision frustrates the fundamental purpose of the Indian Claim Commission Act. That purpose was to divest Congress of responsibility for deciding the merits of Indian claims, as it previously had done by considering the requests of various tribal entities for passage of special jurisdictional acts. See H.R. Rep. 1466, 79th Cong., 1st Sess. 6 (1945). Moreover, Congress deliberately rejected suggestions that it retain for itself plenary authority to review the claims, treating the Commission's decisions as mere recommendations, adopting instead the language of Section 22(a) which treats the decision of the Commission "as a final judgment of the Court of Claims" payable subject only to the formality of the appropriations process. /6/ The upshot is that in 1946 Congress meant to reserve itself only the routine exercise of its authority to make appropriations; Congress did not contemplate that it would redetermine the merits of claims proceedings at this juncture. b. Indian claims judgments obviously are different from most, if not all, other judgments of the Court of Claims in that they are made on behalf of a collective entity, and therefore pose questions of distribution. In the period following enactment of the Indian Claims Commission Act, as judgments were rendered, the Secretary of the Interior treated the judgment funds appropriated by Act of Congress, which were deposited to the credit of the tribe in the Treasury, as tribal property, which, he, as fiduciary of the tribe, had authority to distribute or to apply for the benefit of the Tribe. See H.R. Rep. 93-377, 93d Cong., 1st Sess. 4 (1973); 119 Cong. Rec. 32075 (1973) (remarks of Rep. Meeds). Congress became concerned, however, that the Secretary had given undue emphasis to individual distribution, and insufficient attention to needs for tribal development and education expenditures. Ibid. Congress accordingly acted to oversee the Secretary's performance of his fiduciary duty. Beginning in 1963, the Interior Department Appropriations Act carried language that required the Secretary to submit distribution plans to Congress to allow it an opportunity to exercise a veto. See, e.g., Department of the Interior and Related Agencies Appropriation Act, 1963, Pub. L. No. 87-578, 76 Stat. 338. And commencing in 1965, this requirement was further stiffened by precluding distribution absent affirmative authorizing legislation. Department of the Interior and Related Agencies Appropriation Act, 1965, Pub. L. No. 88-356, 78 Stat. 276. Significantly, these appropriations riders were all phrased as restrictions upon the authority of the Secretary, otherwise recognized, to advance "tribal funds" to the beneficially interested tribe (emphasis added). In short, the appropriated judgment funds were regarded as tribal funds, albeit not immediately subject to disposal by the tribe in an unfettered manner. Congress merely wished to oversee the Secretary's performance of his fiduciary duty to manage this tribal property. c. Having asserted its authority to govern distribution in this manner, Congress imposed a substantial burden on itself, which grew as the number of claims judgments grew. Ultimately, in 1973, Congress found it necessary to shift much of the responsibility back to the Secretary by enacting the Distribution of Judgment Funds Act, 25 U.S.C. 1401 et seq. Under that Act, the Secretary was directed to develop distribution plans after consultation with the affected tribe or group, and to present them to Congress for its review. A plan so proposed would go into effect unless vetoed by Congress within 60 days. Nothing in the legislative history of the DJFA provides the slightest support for the court of appeals' view that adoption of a distribution plan is necessary to effect payment for the purposes of Section 22(a) of the Indian Claims Commission Act. Rather, the new procedure was intended to be a more efficient means of determining which individual Indians were to receive a share of the tribal trust fund and to relieve the Congress of the burden of primary responsibility for devising distribution plans. See S. Rep. 93-167, 93d Cong., 1st Sess. 2 (1973); H.R. Rep. 93-377, 93d Cong., 1st Sess. 4-5 (1973); 119 Cong. Rec. 32075 (1973) (remarks of Rep. Lujan). Congress plainly did not intend, by enacting the DJFA, to institute a new level of congressional review of the merits of the claims underlying appropriated judgments. The DJFA was to create less work for Congress, not more. d. As of 1973, it was still necessary for Congress to appropriate funds to pay a judgment entered by the Indian Claims Commission. This was true because Section 22 of the Claims Commission Act merely authorized appropriations to pay judgments under the Act, but did not provide for automatic appropriations. Moreover, Section 1302 of the Supplemental Appropriations Act of 1957, ch. 745, 70 Stat. 694-695, as amended, 31 U.S.C. 724a, which established a standing or automatic appropriation to pay judgments of the Court of Claims, was inapplicable to such judgments both because they were not considered judgments of the Court of Claims, and because the automatic appropriation provision then applied only to awards not in excess of $100,000. In 1977, however, the $100,000 ceiling was eliminated by the Supplemental Appropriations Act, 1977, Pub. L. No. 95-26, 91 Stat. 96-97. See H.R. Rep. 95-68, 95th Cong., 1st Sess. 142, 182-183, 184 (1977); S. Rep. 95-64, 95th Cong., 1st Sess. 173, 204-206 (1977). And in 1978, the automatic appropriation was explicitly made applicable to judgments of the Indian Claims Commission by the Supplemental Appropriations Act, 1978, Pub. L. No. 95-240, 92 Stat. 116-117. See S. Rep. 95-564, 95th Cong., 1st Sess. 76-77 (1977). The combined effect of the 1977 and 1978 amendments to 31 U.S.C. 724a /7/ was to eliminate the necessity for Congress to act to appropriate funds to pay judgments of the Claims Commission. Rather, once the final award was certified by the Comptroller General in the General Accounting Office, the appropriation was automatic. The legislative history of the 1977 and 1978 amendments to the Section 724a in no respect suggests that Congress intended to reserve to itself an opportunity to reconsider the claim by deferring the date of "payment" for purposes of Section 22(a) until the date a distribution plan became effective. Rather, Congress' sole concern was to dispense with a chore regarded as ministerial. H.R. Rep. 95-644, 95th Cong., 1st Sess. 53 (1977); S. Rep. 95-564, supra, at 76. It is simply irrational to suppose that the moment of "payment" somehow sprang from the point of appropriation to the point where a distribution plan was adopted, there being no hint in the legislative history of either the DJFA or the amendment to the standing appropriation provision that such a change was intended. The foregoing statutory history demonstrates the error of the court of appeals' interpretation of Section 22(a). Congress simply never contemplated taking the "final look" at the underlying claim that the court of appeals "preserved" through its ruling that the preclusive effect of Section 22(a) is not triggered until a distribution plan is established. 3.a. The decision of the court of appeals obviously conflicts directly and irreconcilably with the Court of Claims interpretation of Section 22(a) in Temoak Band of Western Shoshone Indians, 593 F.2d at 999, where the Court of Claims recognized that, in light of the application of the standing appropriation for judgments to the Indian Claims judgments, "Congress can no longer stop the payment and defer the extinguishment of the title claim, just by not appropriating," and that the Western Shoshones that seek land in lieu of a money judgment must now "appeal * * * to legislative grace" if they wish to achieve that result. The court of appeals did not deny the inconsistency of its analysis with that of the Court of Claims, suggesting only that it would be preferable, in its own view, as a policy matter, for the title issue to be determined by the courts, so as to educate Congress. But this suggestion simply ignores that Congress created the preclusion bar of Section 22(a), and, as the Court of Claims has emphasized (see Ages 9-10, supra), retains at all times the power to recognize Western Shoshone title to any part of the lands in dispute that it wishes to recognize. If it chooses, Congress may even decide to allow the land title issue to be litigated without regard to the bar of Section 22. Cf. Sioux Nation, 448 U.S. at 390-407. But unless Congress waives the bar of Section 22, it plainly is inappropriate for a court to avoid that bar simply because it deems the results of litigation on the merits enlightening. Cf. Block v. North Dakota ex rel. Board of University & School Lands, No. 81-2337 (May 2, 1983), slip op. 18-19. The rendering of advice to Congress about possible future legislative action is not in itself a justification for the exercise by a federal court of decisionmaking authority that would otherwise be inappropriate. See Muskrat v. United States, 219 U.S. 346 (1911). b. The court of appeals' decision could have a substantial averse impact upon federal land administration and land titles over a large portion of the state of Nevada. While the present action was brought to enjoin an alleged grazing trespass on 5,240 acres of federal grazing lands, the panel's reasoning could easily be extended to encompass much of the 22 million acres in Nevada that were the subject of the Indian Claims Commission litigation. The Department of the Interior estimates that approximately 15.5 million acres of the claim area consist of lands currently being administered by the BLM pursuant to the Taylor Grazing Act and related statutes. Other significant federal land holdings within the claim area include the Ruby Lake National Wildlife Refuge, and portions of the Nellis Air Force Base Bombing and Gunnery Range, the Nevada Test Site (Department of Energy), Death Valley National Monument, and the Toiyabe and Humboldt National Forests. The remaining lands are in state or private ownership. We have been advised by the Department of the Interior that Western Shoshone groups have, in the wake of the court of appeals' decision, begun to assert that grazing fees due from federal Taylor Grazing Act permittees in the Western Shoshone claims area should be paid instead to the Western Shoshones. While separate litigation might ultimately resolve claims to much of this land adversely to the Western Shoshones, the purpose of Section 22 will obviously be frustrated if such litigation becomes necessary. In addition, the Department of the Interior advises that there is at present a significant number of judgment funds, besides the Western Shoshone award, for which there is no judgment plan or statute authorizing the use of distribution of the funds. Because of the difficulties inherent in identifying the beneficiaries and their relative interests in a judgment fund, and disputes among the beneficiaries concerning distribution of the award (and whether it should be accepted) in some cases, it appears unlikely that distribution plans will quickly be formulated and approved in all of these cases. We believe that there are some outstanding judgments funds in cases where the claimant may wish to disavow a finding of extinguishment of aboriginal title and seek a land settlement. In such cases the decision of the court below stands, in effect, as an invitation to litigate the question of land title, even though the government has irrevocably committed its funds to a judgment fund constituting compensation for extinguishment of the very same titles. We recognize, of course, that Congress may well have the occasion to consider the Western Shoshone claim for land in the process of acting on a proposed distribution plan or related legislation. /8/ At that time, Congress may see fit to increase the amount of the award, to enact legislation granting the Western Shoshone recognized title to designated lands, or to adopt some other form of legislative adjustment. But Section 22 establishes the responsibility of the courts in this matter: to give preclusive effect to the final judgment of the Commission. c. Our submission in this Court rests upon a statutory rule of preclusion rather than common-law rules of res judicata or collateral estoppel. But the policies that underlie the judge-made rules of preclusion are not inapplicable here. For over 25 years the Western Shoshone maintained the position in the claims proceedings that their aboriginal title had been extinguished. To permit that question to be reconsidered in another forum at this late date is at odds with fundamental principles of judicial economy and the disfavor with which inconsistent decisions are regarded. The respondents were active participants in the earlier unsuccessful effort by the Western Shoshones to derail the Court of Claims proceeding in its eleventh hour. It is particularly inappropriate, therefore, to allow the court of appeals to intercede now to bring about a different result that it deems more suitable. The Court has recently reaffirmed the special rigor with which the policies of preclusion are to be applied in cases involving land title disputes. "Our reports are replete with reaffirmations that questions affecting titles to land, once decided, should no longer be considered open." Arizona v. California, No. 8 Orig. (Mar. 30, 1983), slip op. 13. Indeed, "(t)he policies advanced by the doctrine of res judicata perhaps are at their zenith in cases concerning real property, land and water." Nevada v. United States, No. 81-2245 (June 24, 1983), slip op. 17-18 n.10. The decision of the court of appeals, which gratuitously invites the wholesale litigation of subsisting Indian title to land where compensation has been awarded for extinguishment of that title, cannot be reconciled with this teaching. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General F. HENRY HABICHT, II Assistant Attorney General JOSHUA I. SCHWARTZ Assistant to the Solicitor General JACQUES B. GELIN DEAN K. DUNSMORE ROBERT L. KLARQUIST Attorneys MARCH 1984 /1/ The Act does not appear in the 1982 version of the United States Code because pursuant to 25 U.S.C. (1976 ed.) 70v, the existence of the Indian Claims Commission terminated on September 30, 1978. The residual docket of the Commission was transferred to the United States Court of Claims by 25 U.S.C. (Supp. V) 70v-3. Neither this transfer nor the subsequent reorganization of the Court of Claims into the United States Claims Court and the United States Court of Appeals for the Federal Circuit has any bearing upon the question presented. /2/ See Shoshone Tribe v. United States, 11 Indian Cl. Comm'n 387, 388, 421-446 (1962); Western Shoshone Identifiable Group v. United States, 29 Indian Cl. Comm'n 5, 6, 63 (1972); Western Shoshone Legal Defense and Education Ass'n v. United States, 531 F.2d 495, 499 (Ct. Cl.), cert. denied, 429 U.S. 885 (1976). /3/ See Amicus Br. of the Western Shoshone Legal Defense and Education Ass'n, Mary Dann and Carrie Dann at 2, Western Shoshone Identifiable Group v. United States, No. 79-340; see also App., infra, 3a. (1979 Term). /4/ The Court of Claims observed in an aside (531 F.2d at 503 n.16) that, because Section 22(a) of the Indian Claims Commission Act does not bar collateral attack upon determinations underlying Claims Commission decisions until a claim has been paid, the majority faction of the Western Shoshones retained the option, if it was so advised, to ask Congress to delay making an appropriation to pay the claims award while seeking to litigate its title claim. /5/ See, e.g., Br. in Opp. for the Western Shoshone Identifiable Group at 4-9 & n.14, Western Shoshone Legal Defense and Education Ass'n v. United States, No. 76-90 (1976 Term). /6/ The House report reflects Congress' expectation that Claims Commission awards would be routinely paid "in like manner as are judgments of the Court of Claims." H.R. Rep. 1466, supra, at 13. Significantly, the Department of Justice criticized this provision, arguing that "(i)n view of the vague basis upon which many of the claims presented to the Commission would be predicated" the "provision making the findings of the Commission binding upon Congress would constitute a surrender by Congress of its very necessary prerogative to sift and control this unusual type of claim against the Government." Id. at 17. The House was unpersuaded. While it emphasized that Congress would retain its traditional power to make or withhold appropriations to pay a judgment, it was expected that appropriations would be routinely made. Id. at 10, 13; 92 Cong. Rec. 5313 (1946) (remarks of Rep. Jackson). The Senate was somewhat more receptive to the Department of Justice's argument and deleted the language of the House bill providing that the Commission's report should have the effect of a final judgment and should be paid like any other Court of Claims judgment. See S. Rep. 1715, 79th Cong., 2d Sess. 6 (1946); 92 Cong. Rec. 9218 (1946). But the Senate version was rejected by the Conference, which adopted the present statutory language. See H.R. Rep. 2693, 79th Cong., 2d Sess. 8 (1946). /7/ Title 31 has now been recodified. The counterpart to former 31 U.S.C. (Supp. V) 724a is to be codified at 31 U.S.C. 1304(a). See Pub. L. No. 97-258, 96 Stat. 917. The recodified provision omits all reference to Indian Claims Commission judgments on the theory that the provision is no longer of current relevance, the existence of the Claims Commission having been terminated. See H.R. Rep. 97-651, 97th Cong., 2d Sess. 62 (1982). /8/ Congress is aware of the controversy surrounding the Western Shoshone award. See S. Rep. 97-658, 97th Cong., 2d Sess. 4-5 (1982). APPENDIX APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.