UNITED STATES OF AMERICA, PETITIONER V. JOHN R. WILSON, ET AL. No. 83-952 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 Eighth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit PARTIES TO THE PROCEEDING The parties asserting a counterclaim for improvements, respondents herein, are John R. Wilson (the personal representative of Roy Tibbals Wilson, now deceased), Charles E. Lakin, Florence Lakin, Harold Jackson, RGP, Inc., and Otis Peterson. Other respondents under Rule 19.6 of the Rules of this Court are Darrell L. Sorenson, Harold Sorenson, Harold M. Sorenson, Luea Sorenson, Travelers Insurance Company, the State of Iowa, the State Conservation Commission of the State of Iowa, and the Omaha Indian Tribe. TABLE OF CONTENTS Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G OPINIONS BELOW The opinions of the court of appeals (App. A, infra, 1a-14a; App. C, infra, 18a-23a) are reported at 707 F.2d 304. The opinion of the district court (App. F, infra, 28a-79a) is reported at 523 F. Supp. 874. JURISDICTION The initial judgment of the court of appeals was entered on October 26, 1982 (App. B, infra, 15a-17a). Petitions for rehearing were filed by some of the respondents herein, and the court of appeals thereafter issued a modified opinion (App. C, infra, 18a-23a). A new judgment was entered on June 10, 1983 (App. D, infra, 24a-26a). The United States' petition for rehearing of the decision as modified was denied on August 11, 1983 (App. E, infra, 27a). On October 31, 1983, Justice Blackmun extended the time for filing a petition for a writ of certiorari to and including December 9, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, in a quiet title action brought by the United States as trustee for the Omaha Indian Tribe, sovereign immunity bars the trespassers from asserting a counterclaim against the United States for the value of improvements they placed on the lands in issue during the time they were wrongfully in possession. STATEMENT This case concerns the jurisdiction of the federal courts to entertain counterclaims seeking monetary relief against the United States when the government initiates a quiet title action to establish ownership and regain possession of land belonging to an Indian tribe. That question is presented here only in respect of some 2,200 acres finally determined to be part of the Omaha Indian Reservation, the title to which is held by the United States for the benefit of the Tribe. Omaha Indian Tribe v. Wilson ("Omaha II"), 614 F.2d 1153 (8th Cir.), cert. denied, 449 U.S. 825 (1980). See App. A, infra, 4a. Although no title issue remains open as to these lands, the court of appeals has now held, upon petition for rehearing in subsequent proceedings relating to additional lands not before this Court, that, as a condition of taking title to the 2,200 acres, the United States must reimburse the trespassers for the value of their improvements. App. C, infra, 18a-23a. For present purposes, therefore, the underlying facts are of little relevance and are, in any event, already familiar to this Court. See Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979). In these circumstances, we summarize the complex history of the case as briefly as possible. /1/ 1. A treaty entered into on March 16, 1854, between the Omaha Indian Tribe and the United States resulted in the creation of the Omaha Indian Reservation along the west (or right descending) bank of the Missouri River in what was then the Territory of Nebraska. See Wilson v. Omaha Indian Tribe, 442 U.S. at 658-659 & n.4. In 1867, a survey by T.H. Barrett of the General Land Office established that, at that time, the Missouri River, where it was the boundary of the reservation, looped sharply to the east, creating a "lobe or peninsula sticking out like a thumb pointing east from Nebraska into Iowa." United States v. Wison, 433 F. Supp. 67, 69 (N.D. Iowa 1977). Throughout this litigation, this lobe has been referred to as the Barrett Survey area. Over the years, the Missouri River has shifted its course many times -- so often, in fact, that the States of Iowa and Nebraska, whose common boundary the River was, in 1943 entered into an Interstate Compact establishing a fixed boundary between them. See Nebraska v. Iowa, 406 U.S. 117 (1972). This fixed boundary, though, was not congruent with the River as it existed in 1943 (see Wilson v. Omaha Indian Tribe, 442 U.S. at 659 n.6), or as it exists today. In fact, the Barrett Survey area, once west of the Missouri River and thus immediately contiguous to the Indian reservation, is now east of the Missouri River and therefore separated from the other lands of the reservation. See id. at 659. For many years prior to 1975, non-Indians farmed the lands within this cutoff loop and claimed ownership of those lands (id. at 659-660). 2. In 1975, the United States brought an action to quiet title, as trustee for the Omaha Indian Tribe, to "all those lands now lying within the Barrett Survey, approximately 2900 acres, and extending to the center of the main channel of the Missouri River as it existed when the Reservation was created." United States v. Wilson, 433 F. Supp. at 70. /2/ At about the same time, the Tribe brought two actions in federal court, seeking relief similar to that sought by the United States, but with two important differences. First, the Tribe sought to quiet title in itself to a larger area (encompassing approximately 11,000 acres); in addition, the Tribe sought damages for the claimed illegal trespasses. Ibid. The Tribe's claim of title to the additional acreage, as well as its claim for damages, was severed from the suit brought by the United States. "This left the 2900 acres within the Barrett Survey as the subject matter of this (litigation) since the dispute over that land is common to all three lawsuits." Id. at 69. The United States and the Tribe based their claim to the lands within the Barrett Survey area on the theory that the Missouri River had changed its course avulsively (see generally Arkansas v. Tennessee, 246 U.S. 158, 175 (1918)), and, accordingly, that the boundary of the reservation did not move but remained in the middle of the channel of the Missouri River as it existed at the time of the change. The defendants, on the other hand, argued that the River's migration westward had been by the natural and gradual processes of erosion and accretion and that the boundary of the reservation therefore retreated westward with the River. See Wilson v. Omaha Indian Tribe, 442 U.S. at 660. Applying the legal principles established by this Court in Wilson v. Omaha Indian Tribe, supra, the court of appeals on remand ordered title to approximately 2,200 of the 2,900 acres claimed by the United States to be quieted in the United States as trustee for the Tribe. Omaha Indian Tribe v. Wilson, 614 F.2d 1153 (8th Cir.), cert. denied, 449 U.S. 825 (1980). /3/ The present petition does not involve any title issues, but instead relates to that portion of the court of appeals' decision (App. C, infra, 18a-23a) requiring the United States to pay respondents /4/ for the value of improvements made upon the 2,200 acres of land within the Barrett Survey area to which title has been quieted in the United States as trustee for the Tribe. 3. In the answers filed by respondents in the quiet title action instituted by the United States (No. C 75-4024 (N.D. Iowa)), respondents counterclaimed for a judgment quieting title in themselves and for "such other relief as the Court may find justified * * *." Upon remand from the court of appeals after title had been quieted in the United States as trustee, respondents announced that "such other relief" encompassed the value of improvements placed upon the land by them or their predecessors in interest. /5/ Respondents argued that general principles of equity are binding on the United States and that, as a condition precedent for obtaining equitable quiet title relief, the government must do equity by reimbursing them for the improvements referenced above (App. F, infra, 70a). As an alternative basis for recovery, respondents argued that Nebraska law entitled them to recover for improvements, relying on the Nebraska Occupants and Claimants Act, Neb. Rev. Stat. Sections 76-301 to 76-311 (reissue 1981) (App. F, infra, 70a). /6/ The district court rejected respondents' arguments, holding that the sovereign immunity of the United States barred any counterclaim for improvements and that Congress has not consented to the application of the Nebraska statute to lands owned by the United States in trust for the Omaha Indian Tribe (id. at 70a-76a). In its initial decision entered on October 26, 1982, the court of appeals thought it was unnecessary to rule on the viability of respondents' counterclaim because the issue appeared not to be ripe for decision (App. A, infra, 13a n.11): (Respondents) also appeal the district court's denial of their request for the value of improvements they made to Barrett Survey land during their possession of it. It is our understanding that the improvements were made solely on the particular tracts of land in controversy here, and not on the trust lands with respect to which this court has already indicated title must be quieted in the Tribe and the United States. /7/ If we are correct, then clearly we need not rule on this issue in view of our remand. Respondents sought rehearing, claiming, inter alia, that improvements had been made to the lands on which title had been quieted in the United States as trustee for the Tribe, thus making it necessary for the court to rule on the sovereign immunity issue (App. C, infra, 21a). The court of appeals granted rehearing on that issue and reversed the district court's ruling in favor of the United States (id. at 23a). The court of appeals held that, as a general rule, the plaintiff in a quiet title action must do equity by reimbursing the party in wrongful possession for the value of improvements as a condition precedent to the plaintiff's right to relief (id. at 21a). The court found no reason not to apply this doctrine to the United States. "(T)he duty to pay for the value of improvements," the court held, "is an element of the government's own claim, a condition precedent to the right of the United States to recover" and "does not arise as a result of finding adverse to it on a counterclaim by the (respondents)" (id. at 22a-23a). Accordingly, the court of appeals determined that the doctrine of sovereign immunity was simply "inapplicable" (id. at 23a). REASONS FOR GRANTING THE PETITION The decision of the court of appeals conflicts with decisions of this Court holding that in the absence of statutory authorization courts do not have jurisdiction over counterclaims against the United States. See United States v. Shaw, 309 U.S. 495 (1940); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940). In this quiet title action brought by the United States on behalf of the Omaha Indian Tribe, no statute authorizes respondents' counterclaim for the value of improvements placed on the land. Accordingly, the court of appeals was plainly wrong in requiring the United States, which had sought no trespass damages from the respondents, to pay respondents for the value of improvements the United States did not ask to be made. The court of appeals' decision could have a substantial adverse effect on the many quiet title actions brought by the United States each year, both on its own behalf and in its capacity as trustee for the Indians. In carrying out its obligations on behalf of Indians and the general public to recover wrongfully occupied lands, the United States may be subjected to significant and unexpected liabilities. While the government could protect itself in part by seeking trespass damages against which counterclaims for improvements could be offset, it should not be forced to elect to seek trespass damages in all cases. Indeed, in many quiet title actions, including the present one, the United States decides on equitable grounds to forego trespass damages to which it would otherwise be entitled in recognition of the fact that the defendants may be "innocent" trespassers. But such governmental self-restraint obviously does not sanction courts to super-impose their own notions of equity as conditions on the United States' right to bring suit. The clear conflict with this Court's decisions barring unauthorized counterclaims, along with the importance of the issue to the government, warrants review by this Court. /8/ 1.a. In United States v. Shaw, supra, this Court clearly held that, absent a statute so providing, the courts do not have jurisdiction over cross-claims against the United States. There, a statute (the Act of March 3, 1797, formerly codified at 28 U.S.C. (1940 ed.) 774, now codified at 28 U.S.C. 2406) allowed cross-claims, but only up to the amount of the government's claim. In a companion case to Shaw, United States v. United States Fidelity & Guaranty Co., supra, no statute authorized the cross-claim (against an Indian Tribe that enjoyed immunity comparable to that of the United States), and the Court accordingly held that the cross-claim could not be maintained. Some years earlier, the Court explained in Nassau Smelting & Refining Works, Ltd. v. United States, 266 U.S. 101, 106 (1924), that: The objection to a suit against the United States is fundamental, whether it be in the form of an original action or a set-off or a counterclaim. Jurisdiction in either case does not exist unless there is specific congressional authority for it. See also Illinois Central R.R. v. State Public Utilities Commission, 245 U.S. 493, 504-505 (1918). In the present case, there is no statute authorizing respondents' counterclaim. Section 2406 of Title 28, as interpreted by the Court in Shaw, limits cross-claims to the amount of the government's claim. But the government sought no money judgment, having eschewed any demand for trespass damages or mesne profits. Thus, respondents do not (and could not) contend that they fall within the scope of 28 U.S.C. 2406. /9/ b. As the district court recognized (App. F, infra, 72a-73a), in the absence of statutory authorization which is here lacking, respondents could recover on a counterclaim against the government only by asserting a theory of recoupment arising out of the same transaction as the claim of the United States, and only if the counterclaim did not seek relief in excess of, or different in kind from, that sought by the United States. This apparent exception is permitted because a counterclaim based on recoupment is in reality a defense to the government's claim for relief, rather than a separate, unconsented suit against the sovereign. Accordingly, since the ultimate goal of awarding damages in a trespass action is to make the plaintiff whole, a defendant who in good faith has increased the value of the premises may offset the value of the improvements against the damages or the mesne profits sought. The claim for improvements in the nature of recoupment would be, in a trespass action, a defense to the claim for damages, and the courts have long recognized that in such cases an offset may be asserted without infringing on the doctrine of sovereign immunity. See, e.g., Bull v. United States, 295 U.S. 247 (1935); Oneida Indian Nation v. County of Oneida, Nos. 82-7436, 82-7486 & 82-7526 (2d Cir. Sept. 29, 1983), slip op. 6744-6746. In this quiet title action, however, the fact that respondents may have improved the land is not a defense to the relief sought by the United States, and thus they cannot assert a counterclaim for improvements under a theory of recoupment. c. Notwithstanding these well-settled limitations on counterclaims against the United States, the court of appeals professed to avoid the bar of sovereign immunity by asserting that respondents' counterclaim for improvements is not really a counterclaim at all but is instead "an element of the government's own claim, a condition precedent to the right of the United States to recover * * *" (App. A, infra, 22a-23a). The court then invoked the oft-repeated maxim that one seeking equity must do equity and cited a number of cases that allegedly support the application of that doctrine to the United States (id. at 22a). In fact, however, the cases were wrongly relied upon. One of this Court's decisions cited by the court of appeals (App. A, infra, 22a) actually supports precisely the result for which we argue. In Pan American Petroleum & Transport Co. v. United States, 273 U.S. 456 (1927), the United States sought the cancellation of contracts and leases obtained by fraud and bribery arising out of the Teapot Dome scandal. It obtained that relief in the district court but was also ordered to pay the defendants the value of construction work performed under the contracts, fuel oil furnished to the Navy at Pearl Harbor, and the cost of drilling and operating oil wells. This Court unequivocally rejected the defendants' counterclaims. Although the Court noted that "(t)he general principles of equity are applicable in a suit by the United States to secure the cancellation of a conveyance or the rescission of a contract," the Court held that those principles "will not be applied to frustrate the purpose of its laws or to thwart public policy." 273 U.S. at 506. The Court went on to distinguish the United States from a private litigant because the public policy of vindicating the integrity of the petroleum reserves transcended the financial aspects of the litigation. /10/ In support of its holding in Pan American Petroleum & Transport Co., the Court cited Heckman v. United States, 224 U.S. 413 (1912), a suit brought by the United States to cancel conveyances of allotted Indian lands on the ground that the conveyances were made in violation of the restrictions on the Indians' power of alienation. The Court there refused to order return of the purchase price as a condition precedent to cancellation, reasoning that any such requirement would frustrate Congress's policy of protecting the Indians. In the present case, the United States brought suit to vindicate that same policy, and there is no reason why the government's right to relief should be conditioned upon paying for improvements that neither it nor the Indians asked to be made. Moreover, federal courts historically have attached special significance to claims for Indian title. They have acknowledged that such suits are often brought belatedly because of the past inability of the Indian people to defend their lands. Accordingly, they have ruled that state statutes of limitations do not bar such claims (Ewert v. Bluejacket, 259 U.S. 129, 137-138 (1922); Capitan Grande Band of Mission Indians v. Helix Irrigation District, 514 F.2d 465 (9th Cir.), cert. denied, 423 U.S. 874 (1975)); that common law rules of pleading do not oust federal court jurisdiction (Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974)); and that the federal common law of laches cannot be applied to Indian title claims (Oneida Indian Nation v. New York, 691 F.2d 1070, 1084 (2d Cir. 1982)). The court of appeals' decision is contrary to the underlying policy that permits the assertion of these claims without regard to rules ordinarily applicable in private litigation. In any event, the court's assumption that it must order reimbursement for improvements in order to "do equity" (App. A, infra, 21a) is incorrect. Respondents have been wrongfully in possession of Indian lands for many years, enjoying the use of the lands together with the profits from the produce thereof. Yet the United States has not sought compensation for rents and profits. Equity surely does not demand that respondents recover for whatever made their wrongful tenure more comfortable or their gain the greater. Cf. United States v. Louisiana, 446 U.S. 253, 266-272 & n.4 (1980). 2. The court of appeals' decision threatens to have a serious adverse impact on the administration of Indian affairs. Despite the fact that only Congress has the authority to divest an Indian tribe of its property rights (25 U.S.C. 177), the net effect of the decision is to condition the quieting of title on payment for improvements. As a practical matter, therefore, the court of appeals' decision will require the government to appraise the value of improvements made by trespassers on Indian lands before making a decision to sue to regain possession of the lands for the rightful Indian owners. /11/ Conceivably, the government could find that the United States' risk of monetary liability in the event it prevailed in a quiet title action would outweigh the appraised value of the unimproved estate; consequently, budgetary constraints could compel a decision not to assist the dispossessed Indian landowners. The Indians may in turn sue to compel the United States to represent them in its capacity as their trustee, or they may seek damages in the United States Claims Court for a breach of trust in failing to protect their property interests. While prosecutorial discretion could be advanced as a defense to such suits, our experience has been that this type of litigation is not without risks. See, e.g., Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975); Covelo Indian Community v. Watt, 551 F. Supp. 366 (D.D.C. 1982), vacated as moot, No. 82-2377 (D.C. Cir. Feb. 1, 1983). The prospects of such dilemmas are quite real and potentially enormous. Pursuant to Sections 3 and 4 of the Indian Claims Limitation Act of 1982, Pub. L. No. 97-394, 96 Stat. 1977-1978, the Secretary of the Interior was required to publish in the Federal Register two lists of potential Indian damage claims subject to the statute of limitations for causes of action brought by the United States (28 U.S.C. 2415). On March 31, 1983 (48 Fed. Reg. 13698), and November 7, 1983 (48 Fed. Reg. 51204), over 38,000 potential claims were listed, half of which involve claims of title not subject to the statute of limitations but which provide the underlying basis for a claim of trespass damages. Section 5 of the Act, 96 Stat. 1978, requires the Secretary to prepare reports to the Indians on all listed claims that are rejected for litigation, explaining the basis for the decision not to bring suit. While a substantial percentage of the listed claims have little legal merit and are not likely to be litigated by the United States, there is still a danger that otherwise meritorious title claims will have to be rejected on the ground that the government could be required to pay for the value of the trespassers' improvements. The Secretary's decision in such matters will no doubt be challenged by some Indian claimants in litigation. Other Indian claimants may choose to file their own actions against the trespassers, seeking to quiet title in the United States for their benefit. The defendants may in turn seek to implead the United States to require that the government pay for the value of their improvements in the event the Indian claimants prevail. In the past, the United States has been successful in resisting such third-party complaints on the ground of sovereign immunity, but that defense has now been rejected by the court of appeals in the case of counterclaims. Because the courts have often held that Indian litigants stand in the shoes of their trustee, the United States (e.g., Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 474-475 (1976)), they may extend the Eighth Circuit's rationale to third-party complaints as well. Another likely adverse result of the Eighth Circuit's ruling is that when the government sues to regain possession of improved Indian land from trespassers, it will be compelled to seek mesne profits or trespass damages to offset a possible counterclaim for the value of improvements. In the past, the government has often declined to seek such monetary relief because it seemed inequitable; the instant case is one example of this policy. But the court of appeals' decision will likely force the United States to assert all possible claims in order to protect the public fisc to the maximum extent possible. It seems unlikely that such a change in policy would be in the best interests of any party to Indian title litigation. In sum, the court of appeals' decision is wrong as a matter of law, and it could adversely affect literally thousands of Indian claims that Congress has directed the Secretary of the Interior to evaluate for litigation. Review by this Court is therefore appropriate. 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 LOUIS F. CLAIBORNE Deputy Solicitor General KATHRYN A OBERLY Assistant to the Solicitor General CLAIRE L. MCGUIRE DAVID C. SHILTON Attorneys DECEMBER 1983 /1/ This case has been the subject of numerous decisions; in chronological order, those decisions are: United States v. Wilson, 433 F. Supp. 57 and 433 F. Supp. 67 (N.D. Iowa 1977), vacated and remanded sub nom. Omaha Indian Tribe v. Wilson, 575 F.2d 620 (8th Cir. 1978), vacated and remanded, Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979); remanded to district court, Omaha Indian Tribe v. Wilson, 614 F.2d 1153 (8th Cir.), cert. denied, 449 U.S. 825 (1980); United States v. Wilson, 523 F. Supp. 874 (N.D. Iowa 1981), reversed and remanded, United States v. Wilson, 707 F.2d 304, as modified on rehearing, 707 F.2d 311 (8th Cir. 1983). /2/ Certain so-called "fee-patented lands," totalling approximately 400 acres, were excepted from the claim of the United States. These lands had earlier been allotted to individual members of the Tribe and subsequently sold to non-members. See United States v. Wilson, 433 F. Supp. at 70. /3/ The question of title to the remaining 700 acres within the Barrett Survey area -- being the so-called "fee-patented lands" not claimed by the United States (see page 4, note 2, supra) and lands claimed by the State of Iowa -- as well as the claim of the Omaha Indian Tribe to lands outside the Barrett Survey area and its claim for damages remain to be decided by the district court. The district court, in its latest ruling, quieted title to the remaining 700 acres in the Tribe and the United States as trustee for the Tribe (App. F, infra, 28a-70a), but the court of appeals concluded that the district court had applied an incorrect burden of proof as to those lands and accordingly reversed and remanded that aspect of the case for further proceedings. (App. A, infra, 1a-14a). /4/ As used in this petition, "respondents" refers only to those parties seeking compensation from the United States for improvements placed upon the land while they were wrongfully in possession, and not to parties who are respondents in this Court only by virtue of Rule 19.6 of the Rules of this Court. /5/ The district court in one of its earlier decisions described the land in question as having been "cleared of trees, leveled, fenced, drained, roads built, and cultivated." United States v. Wilson, 433 F. Supp. at 69. These are, apparently, the improvements for which respondents now seek compensation. The district court noted that, with these improvements, the land "is now a valuable and productive tract of farm ground, as evidenced by the purchase of 2,180 acres by defendant Wilson in 1972 by Warranty Deed for a consideration valued at $1,685,000, approximately 1780 acres of which is within the Barrett Survey and the subject of this trial." Ibid. /6/ In pertinent part, the Nebraska statute requires that the successful claimant in a quiet title action must either pay for the improvements on the property or return them to the trespasser. If the successful claimant fails to do either, then the trespasser may regain title by paying into court the value of the real estate without improvements. See App. F, infra, 76a & n.26. /7/ The "particular tracts of land in controversy here" are the 700 acres as to which the court of appeals held that the district court had applied an erroneous burden of proof in determining that title should be quieted in the United States and the Tribe. See page 5 note 3, supra. /8/ Although the court of appeals remanded the case to the district court for further proceedings relating to respondents' claim for the value of the improvements (App. A, infra, 23a & n.1), there is no reason to postpone review by this Court. The district court's decision on remand cannot alter the rule of law announced by the court of appeals; the court of appeals' determination that the United States must pay the value of improvements as a prerequisite to judgment quieting title in itself is a clearcut ruling that controls the further conduct of this case. As such, it warrants review by this Court now. See, e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 685 n.3 (1949); Land v. Dollar, 330 U.S. 731, 734 n.2 (1947). /9/ Clearly, the Nebraska statute cited by respondents (see pages 6-7 & note 6, supra) cannot defeat the sovereign immunity of the United States. The court of appeals did not rely on that statute, and even respondents did not contend that it is actually controlling. Instead, they argued only that a court of equity should look to the state statute in the exercise of its equitable powers. See App. F, infra, 75a. As the district court recognized (id. at 76a), that argument is foreclosed by sovereign immunity. /10/ The court of appeals cited a number of other cases (App. A, infra, 22a), all of which contain general language to the effect that the United States, when seeking equity, is as bound to do equity as a private suitor. But, as with Pan American Petroleum & Transport Co., supra, the cited cases either do not reach the result reached by the court of appeals here, or they involve entirely different factual circumstances. United States v. Detroit Timber & Lumber Co., 200 U.S. 321 (1927), involved a factual situation totally distinct from the present case. There, the United States recovered, from a person who had wrongfully sold timber on federal lands, both the land in question and the money received for the sale of the timber. The United States then sought to recover from Detroit Timber & Lumber Co., a good faith purchaser of the timber, the money paid to the wrongdoer. This Court refused to countenance such a double recovery by the United States, noting that "(t)he Government has every dollar which it would have received in case of a perfectly valid entry, and has also recovered the land. Surely it is not just for it to ask further payment * * *." Id. at 340. Many of the lower court cases cited by the court of appeals correctly hold that the courts lack jurisdiction over counterclaims against the United States. See, e.g., United States v. Second National Bank of North Miami, 502 F.2d 535, 548, 549 (5th Cir. 1974), cert. denied, 421 U.S. 912 (1975); Sierra Club v. Hickel, 467 F.2d 1048, 1052 (6th Cir. 1972), cert. denied, 411 U.S. 920 (1973); Ehrlich v. United States, 252 F.2d 772 (5th Cir. 1958). The court of appeals in the present case cited the dissenting opinion in Ehrlich, apparently by mistake (see App. A, infra, 22a). Other cases cited by the court of appeals fall in the category of recoupment actions, in which the claimed off-set arose directly out of the same transaction that formed the basis for the government's claim. See, e.g., Lacy v. United States, 216 F.2d 223, 225-226 (5th Cir. 1954). Finally, the court cited cases involving claims by the government for specific performance of a contract, in which the courts held that to be entitled to such relief the government must itself perform its obligations under the contract. See, e.g., United States v. Bedford Associates, 618 F.2d 904, 919 (2d Cir. 1980); Jacobs v. United States, 239 F.2d 459 (4th Cir. 1956), cert. denied, 353 U.S. 904 (1957). /11/ The reasoning of the court of appeals would seem to apply with equal force to suits brought by the United States to secure possession of public lands occupied by trespassers. As explained below, however, the adverse effects of the decision will have their most serious impact in Indian cases. Appendix Omitted