UNITED STATES OF AMERICA, PETITIONER V. MABEL DUNCAN, ET AL. No. 81-1747 In the Supreme Court of the United States October Term, 1981 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 Claims in this case. Petition for a Writ of Certiorari to the United States Court of Claims TABLE OF CONTENTS Opinion below Jurisdiction Statutes involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINION BELOW The opinion of the Court of Claims (App. A, infra, 1a-32a) is reported at 667 F.2d 36. An earlier opinion of the Court of Claims in this case (App. B, infra, 33a-54a) is reported at 597 F.2d 1337. The opinion of the District Court in related litigation, Duncan v. Andrus, Nos. C-71-1572 WWS and C-71-1713 WWS (N.D. Cal. Mar 21, 1977) (App. C, infra, 55a-68a), is unreported. JURISDICTION The decision of the Court of Claims was filed on December 2, 1981. On February 25, 1982, the Chief Justice extended the time for filing a petition for a writ of certiorari to and including March 20, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1255(1). STATUTES INVOLVED Section 3 of the Act of Aug. 18, 1958, Pub. L. No. 85-671, 72 Stat. 619-620 (the Rancheria Act) as originally enacted, provided in pertinent part: Before making the conveyances authorized by this Act on any rancheria or reservation, the Secretary of the Interior is directed: * * * * * (c) (T)o install or rehabilitate such irrigation or domestic water systems as he and the Indians affected agree, within a reasonable time, should be completed by the United States. Section 3 of the Rancheria Act, as amended by the Act of Aug. 11, 1964, Pub. L. No. 88-419, 78 Stat. 390, provides in relevant part: Before making the conveyances authorized by this Act on any rancheria or reservation, the Secretary of the Interior is directed: * * * * * (c) To construct, improve, install, extend, or otherwise provide, by contract or otherwise, sanitation facilities (including domestic and community water supplies and facilities, drainage facilities, and sewage-waste-disposal facilities, together with necessary appurtenances and fixtures) and irrigation facilities for Indian homes, communities, and lands, as he and the Indians agree, within a reasonable time, should be completed by the United States: * * * . QUESTIONS PRESENTED 1. Whether the United States is answerable in money damages in respect to injuries allegedly suffered by members of an Indian Tribe because their Rancheria was terminated without compliance with statutory procedures, conduct asserted to constitute a breach of trust. 2. Whether, if the United States is held answerable in money damages for such conduct, damages may be awarded for alleged injuries not proximately caused by the statutory violation and breach of trust alleged. STATEMENT 1. Respondents are individual East Lake Band Pomo Indians of the Robinson Rancheria seeking to recover damages for injuries allegedly suffered in the wake of the termination of the reservation status of the Rancheria and their own special legal status as Indians. Respondents contend that the reservation status of the Rancheria was terminated without compliance with the requirements of Section 3 of the Act of Aug. 18, 1958, Pub. L. No. 85-671, 72 Stat. 619-620, as amended by the Act of Aug. 11, 1964, Pub. L. No. 88-419, 78 Stat. 390 (the "rancheria Act"). The Robinson Rancheria is one of several small Indian reservation communities established by the Secretary of the Interior in California in the early years of this century. The Rancheria property was purchased by the United States in 1909 under the authority of the Indian Department Appropriations Act of June 21, 1906, ch. 3504, 34 Stat. 325, 333, and the Appropriations Act of Apr. 30, 1908, ch. 153, 35 Stat. 70, 76. The deed of transfer to the United States did not mention the purpose of the acquisition, or subject the lands to a trust, but the lands were assigned by the Secretary to the East Lake Band of Pomos for their use. In addition to the Robinson Rancheria proper, the East Lake Band of Pomos obtained an interest in a nearby tract generally known as "the Woodlot," which was set aside by the Secretary out of the public domain in 1907. In 1958, Congress enacted the Rancheria Act for the purpose of terminating the reservation status of the rancherias and the Indian status of their residents. Under Section 2 of the Act, 72 Stat. 619, the lands and assets of 41 California rancherias and reservations, including the Robinson Rancheria, were to be distributed in unrestricted fee to the Indians residing thereon, pursuant to a plan to be agreed upon by the Secretary and the distributees. After distribution, the lands were to become subject to all state and federal taxes, and the distributees and their dependents were to lose their special legal status as Indians. Ibid. In addition, any tribal constitution or charter formerly approved by the Secretary was to be terminated. Section 11 of the Act, 72 Stat. 621. Before the rancheria property was conveyed to the distributees under the Act, the Secretary was required to complete certain tasks. These included the responsibility to install or rehabilitate such irrigation or domestic water systems as he and the Indians affected agree, within a reasonable time, should be completed by the United States Section 3(c) of the Act, 72 Stat. 620. A distribution plan for the Robinson Rancheria was developed by the Secretary and, on February 25, 1960, received the necessary approval of the 28 individual distributees. The only "agreement" relating to water supply made by the Secretary with the East Lake Pomos was a statement in the approved distribution plan that (App. A, infra, 5a-6a) The Indians of Robinson Rancheria request that the Bureau of Indian Affairs undertake the following actions: * * * (2) Provide water for any residence under construction that is as much as fifty percent completed within a ninety-day period after acceptance of this plan by a majority of the adult Indian distributees * * * . /1/ Deeds to the distributees were recorded and delivered in 1962. /2/ Thereafter, the lands conveyed to the distributees became subject to the local real property tax. Before public notice was given terminating the reservation status of the Rancheria, the Rancheria Act was amended by the Act of Aug. 11, 1964, Pub. L. No. 88-419, 78 Stat. 390. /3/ Section 3(c) of the Act, as amended, added sewage facilities to the class of improvements the Secretary was authorized to provide prior to termination. As with the 1958 Act, however, the amended Section 3(c) did not expressly require that any particular services be provided. Instead, the Act directed the provision of those services agreed upon by the Secretary and the distributees of the Rancheria. The Secretary and respondents made no further agreements regarding water or sewer services after enactment of the 1964 amendements to the Rancheria Act. A termination proclamation for the Robinson Rancheria and the distributees was published on September 3, 1965. 30 Fed. Reg. 11330. 2. On August 19, 1971, respondents filed an action in federal district court seeking declaratory and injunctive relief against the Secretary of the Interior, contending that the termination of the Robinson Rancheria had been carried out in violation of the terms of the Rancheria Act and was therefore void. Dunacan v. Andrus, Nos. C-71-1572 WWS, C-71-1713 WWS (N.D. Cal.). Respondents also sought money damages for the allegedly wrongful termination. The damage claims were amended in late 1974 to demand an amount in excess of $10,000, and the district court granted respondents' motion to transfer the damage claims to the Court of Claims pursuant to 28 U.S.C. 1406(c). By agreement of the parties, litigation in the Court of Claims was held in abeyance while the proceedings in the district court were concluded. The district court found that, as of the date of termination, the Rancheria water supply was inadequate in quantity for irrigation of home gardens and was unsatisfactory in quality for domestic use. The court also found that the inadequate water supply had created problems in sewage disposal. The court held that, because adequate water facilities had not been provided, the termination was unauthorized under the Rancheria Act (App. C, infra, 63a-66a). /4/ The court ordered that the notice of termination of the Robinson Rancheria be rescinded, that all federal Indian benefits be restored to the distributees, and that each distributee who still held title to the property from the United States be allowed to reconvey the property to the United States to be held for his use (App. C, infra, 66a-68a). /5/ No appeal was taken from the judgment of the district court. 3. Respondents then pursued their claims for damages in the Court of Claims. Respondents sought $100,000 in damages for each individual claimant for injuries allegedly resulting from the government's failure to provide an adequate water supply and from the termination itself. Damages were claimed for, inter alia, subjection to state and local real property taxes, loss of eligibility for various federal services provided to Indians, impairment of the Pomo culture, and emotional and physical injuries (App. A, infra, 21a). Claimants also sought $10,000 damages each for injuries incident to deprivation of an adequate sanitation system (id. at 22a). Finally, respondents prayed for $5,000 for each claimant as compensation for injuries allegedly suffered in consequence of the Secretary's failure to reserve to each individual a right of way easement to the community Woodlot (ibid.). Respondents sought partial summary judgment on liability, claiming that the termination constituted a breach of trust for which the government was required to respond in damages. Alternatively, respondents alleged that the distribution agreement was a contract that the government had breached. The government moved to dismiss respondent's claims for want of jurisdiction, arguing that there was no statutory consent to suit, and that the respondents' claims were barred by the six-year statute of limitations, 28 U.S.C. 2501. The Court of Claims granted the respondents' motion for summary judgment and denied the government's motion to dismiss. Duncan v. United States, 597 F.2d 1337 (1979) (Duncan I) (App. B, infra, 33a-54a). The court held that the findings of the district court in Duncan v. Andrus were binding on the question whether the requirements of the Rancheria Act had been complied with prior to termination (App. B, infra, 44a). The court concluded that the government had consented to suits in money damages for violation of the Rancheria Act, reasoning that whenever a trust relationship is established by statute, the statute "'fairly mandate(s) compensation'" for its violation and thus authorizes suit in the Court of Claims (App. B, infra, 39a). In so holding, the Court of Claims relied on its decision in Mitchell v. United States, 591 F.2d 1300 (1979), (rev'd, 445 U.S. 535 (1980)), holding the United States liable in money damage for "breach of trust" in the management of lands allotted to individual Indians under the General Allotment Act, 25 U.S.C. 331 et seq. (App. B, infra, 39a-40a). In determining that a trust relationship existed between the United States and the East Lake Pomos of the Robinson Rancheria, the court emphasized that a trust need not be established expressly by the statute under which the suit is brought (App. B, infra, 41a). The court relied in this case on the language and history of the 1906 and 1908 Appropriations Acts indicating that the Rancherias were intended to be used by the California Indians in the manner of a reservation (id. at 40a-41a). The court also cited portions of the Agreed Statement of Facts submitted to the district court in Duncan v. Andrus which evidenced the Secretary's belief that a trust relationship had existed prior to termination (id. at 41a-42a). Finally, the court observed that Section 9 of the Rancheria Act makes reference to the "termination of the Federal trust," 72 Stat. 621, and thus indicates that a trust had in fact existed prior to termination (App. B, infra, 43a). The court also held that the trust duty inferred from the above-mentioned sources had been breached by the government (App. B, infra, 44a-46a). The court concluded that the statute absolutely required the Secretary to provide an adequate water supply, and that the Secretary had breached his fiduciary duty in failing to do so. /6/ In granting the motion for summary judgment, the Court of Claims, acting sua sponte, also ruled on some of the particular damage claims, and proffered guidance as to the handling of other claims upon remand (App. B, infra, 46a-53a). The court held that Congress had not consented to suit for the full range of damages that might arguably be traced to a breach of trust. Rather, in the court's view, damages recoverable for breach of trust were limited to "tangible, direct inquiries to property or to direct losses due to denials of required services" (id. at 48a). The court accordinly stated that respondents could not recover damages for emotional and cultural harm (id. at 51a,- 52a, 53a). On the other hand, the court concluded that respondents were entitled to recover as damages all amounts paid in local property taxes during the period of improper termination, and the value of all land forfeited in tax sales (id. at 50a-51a, 52a n.14, 53a). In addition, respondents were to receive the value of all Indian services, including water and sanitary facilities, withheld during termination (id. at 51a, 53a) as well as damages for the government's failure to provide a right-of-way to the Woodlot (id. at 53a). The amount of those damages was left for determination upon remand. /7/ 4. The United States sought this Court's review of the Court of Claims' Duncan I decision. /8/ After deciding United States v. Mitchell, 445 U.S. 535, rev'g 591 F.2d 1300 (Ct. Cl. 1979), this Court granted our petition, vacated the Court of Claims' judgment, and remanded the case for consideration in light of the Mitchell decision. United States v. Duncan, 446 U.S. 903 (1980). 5. Following the analysis employed upon remand in Mitchell v. United States, 664 F.2d 265 (1981) ("Mitchell II"), /9/ the Court of Claims here essentially adhered to its prior decision in this case. /10/ The court concluded that the government had breached a fiduciary duty by its conduct in effectuating the termination of the Robinson Rancheria, and that money damages are available to respondents as compensation for a wide range of injuries allegedly suffered in the aftermath of that termination. The Court of Claims started with the premise, extracted from its Mitchell II decision that (App, A, infra, 8a): if a statute creates or recognizes the United States as general trustee of Indian property, that legislation ordinarily founds a substantive monetary claim for breach of that trust * * * . The Court next concluded (id. at 9a-13a) that the United States held the Robinson Rancheria in trust for respondents. Support for this conclusion was adduced, first, from the appropriations acts authorizing purchase of the Robinson tract. Although the statutes made no mention of an intention to impose a trust, the court thought it clear that Congress intended that the lands be held as a reservation, and inferred that the lands were intended to be held in trust (id. at 10a-11a). Second, the court noticed the Agreed Statement of Facts, entered in the district court proceedings, in which the Secretary acknowledged that, prior to termination, he had "recognized a federal trust relationship with the Robinson or East Lake Band, as a distinct Indian tribe or band of Indians" and that "it was always understood by the Interior Department -- after the purchase of the (Robinson) Rancheria -- that it was being held by the United States for the use of the East Lake or Robinson (Band of) Pomo Indians" (id. at 11a-13a & n.7). Finally, the court pointed to language in the 1958 Rancheria Act alluding to the termination of the "federal trust relationship" (id. at 12a-13a). /11/ The Court of Claims reasoned (App. A, infra, 13a-14a) that unlike the General Allotment Act trust considered in Mitchell I, the trust affecting the Robinson Rancheria was "general and unlimited." The court explained (id. at 13a) that because of the "long and established history * * * of government fiduciary obligation in the case of management of Indian property" it was not necessary for Congress to "spell out specifically all the trust duties of the Government as trustee." On the contrary, absent evidence of a more limited congressional purpose, the court thought it was to be assumed that the trust encompassed the full range of duties borne by a private trustee. In any event, the court noted, the Rancheria Act does impose specific obligations upon the Secretary, including the provision, prior to termination, of adequate water and sewer facilities. The court concluded that the "general trust relationship as to the property of the Robinson Rancheria grounds compensation for breach of that trust" (App. A, infra, 14a), finding nothing in the relevant statutes or circumstances sufficient to overcome the presumption -- extracted from Mitchell II -- that a damages remedy is available for breach of a trust duty owed to Indians. The court reasoned that a damages remedy was required because the Rancheria Act evidences Congress' intention that, prior to termination, "the Indians * * * obtain the proper economic and financial benefits" (id. at 15a), and because injunctive or declaratory relief would provide no relief from injuries allegedly incurred during the period of wrongful termination (id. at 16a-17a). The government's trust, moreover, had been breached, the court held (App. A, infra, 18a-20a), because the Secretary did not provide adequate water and sewer systems prior to termination. /12/ The court observed that the government had conceded that it had violated its statutory obligations to provide water and sewer systems and that, in the injunctive proceedings, the district court had made the same determination. The district court's further finding that the statutory violation was a breach of trust was held to bind the United States as a matter of res judicata. The Court of Claims indicated alternatively that it would reach the same conclusion were the matter res nova -- rejecting the argument that the Secretary's action was within his discretion as a fiduciary even if contrary to the statute. Finally, as it had in its initial decision, the Court of Claims canvassed the various categories of damages sought by respondents (App. A, infra, 21a-29a). The court held that damages would be recoverable for loss of the claimants' tax immunity during the period of termination and loss of land through tax sales -- said to be injuries proximately caused by the breach of trust (id. at 25a, 28a n.24) -- and that damages would also be recoverable for failure to reserve access to the Woodlot if that were determined to be a breach of trust (id. at 24a-25a, 28a). More speculative and amorphous damages claims, however, such as those predicated upon alleged injuries to the Pomo culture and psychological injury to the Indian claimants, were ruled out as beyond the scope of the trust and statutory basis for recovery of damages (id. at 24a, 26a-27a). The court left open the question whether damages were available for loss of Indian health and welfare entitlements during the period of wrongful termination -- reasoning that such damages would be recoverable if, and only if, such damages would have been available to respondents in the absence of any termination (id. at 25a-26a). The court also left unsettled (id. at 27a-28a) the availability of damages for the sale of Rancheria lands by the Indians to non-Indians after termination, for costs incurred by reason of the application of California building codes on the Rancheria after termination, and for alleged physical injuries. The court stated that "the test should always be that of proximate causation by a proven breach of trust" (id. at 28a-29a). /13/ The court thus granted respondents' motion for partial summary judgment, denied the government's motion to dismiss, and remanded the case to the trial division "for the determination of the nature and extent of damages in conformity" with the court's opinion (App. A, infra, 30a). /14/ Judge Nichols relucantly concurred (id. at 30a-32a) in the court's judgment, deeming himself bound by the court's en banc Mitchell II decision, from which he had dissented in material part. REASONS FOR GRANTING THE PETITION The decision below repeats and extends the errors of the Court of Claims' Duncan I decision, and more importantly, of its decision in Mitchell II. Read in conjunction with Mitchell II, the present ruling makes clear that the Court of Claims will almost invariably hold the United States accountable in damages for a statutory violation affecting the welfare of Indian climants. As we explain in our petition in Mitchell II, these decisions represent a fundamental departure from the teaching of this Court, establishing that affirmative congressional authority is necessary to hold the United States answerable in money damages, and that the existence of a substantive statutory right, without more, is insufficient. See United States v. Testan, 424 U.S. 392, 398-405 (1976). Like Mitchell II, the present decision of the Court of Claims threatens to subject the United States to substantial liabilities without the necessary congressional authorization. In addition, in specifying which categories of damages may be recovered, the Court of Claims, in Duncan II, as in Duncan I, disregarded ordinary principles of proximate causation that limit any monetary liability the government may have incurred. That aspect of the decision below, objectionable in itself, also compounds the court's threshold error of permitting recovery for an alleged breach of trust in the absence of proper congressional authorization. 1. It is familiar learning that a waiver of sovereign immunity "'cannot be implied but must be unequivocally expressed.'" United States v. Mitchell, supra, 445 U.S. at 538; United States v. Testan, supra, 424 U.S. at 399, quoting United States v. King, 395 U.S. 1, 4 (1969). And the court has held that to waive sovereign immunity a statute must "in itself * * * fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.'" United States v. Testan, supra, 424 U.S. at 401-402, quoting Eastport S. S. Corp. v. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967). /15/ The Court of Claims' decision rests upon application and extension of the erroneous logic employed in its Mitchell II decision. For the reasons sufficiently stated in our petition in Mitchell II (Pet. 13-15, 18-22) filed simultaneously herewith, that analysis is irreconcilable with the requirement that, as to any claim for money damages against the United States founded upon a statute, the statute must, on its face or by strong and clear implication, convey congressional consent to the recovery of damages. In restating and applying the holding of Mitchell II here, the panel made plain the extraordinary sweep of that doctrine, suggesting that whenever "a statute creates or recognizes the United States as a general trustee of Indian property that legislation founds a substantive monetary claim for breach of that trust * * * " (App. A, infra, 8a). a. Turning, as Testan requires, to the statute itself upon which respondents' claims are premised -- the Rancheria Act -- we find nothing that can "'fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.'" Testan, supra, 424 U.S. at 401-402 (citation omitted). Rather, both before and after amendments enacted in 1964, Section 3(c) of the Rancheria Act, at most imposed a substantive duty upon the Secretary of the Interior to provide some appropriate level of water and sanitary services for the Robinson Rancheria prior to termination (see page 21 & n.17, infra). /16/ Like the duty, imposed by the Classification Act of 1949, 5 U.S.C. 5101(1) (A), to apply "the principle of equal pay for substantially equal work" considered in Testan (424 U.S. at 399-405), this provision merely creates a substantive right, enforceable through declaratory or injunctive relief, but does not support an award of money damages. Contrary to the Court of Claims' suggestion (App. A, infra, 16a-17a), there is nothing about the duties imposed by the Rancheria Act that requires the availability of damages or renders injunctive and declaratory relief inadequate. Indeed, in this case, respondents have secured injunctive relief and the Secretary has agreed to accept the Robinson Rancheria back into reservation status. Thus, the only wrongful act identified to date by either the district court or the Court of Claims -- the Secretary's termination of the Robinson Rancheria and the East Lake Pomos without first providing an adequate water and sewer system -- has been undone. To be sure, the injunctive remedy may be less than ideal when relief is tardily granted, but that circumstance is due in part to respondent's delay in initiation of the district court proceedings; plainly, their right of action accrued immediately upon the termination of the rancheria without compliance with the statute, if not earlier. Moreover, the Court of Claims' conclusion that substantial injuries would go unredressed in the absence of monetary relief, depends largely upon its erroneous view that damages not proximately traceable to the Secretary's adjudicated noncompliance with Section 3(c) of the Rancheria Act are nonetheless recoverable from the United States (see pages 24-25, infra). Rather than supporting an inference that damages are available against the United States for its failure to meet an objective standard defining an adequate level of water and sewer services, the language of Section 3(c) of the Rancheria Act points the other way. By enjoining the Secretary and the Indians to negotiate an agreement as to the facilities to be provided prior to termination, Congress provided a vehicle for enforcement of the Secretary's promises: a suit for damages for breach of contract that may be entertained by the Court of Claims. See 28 U.S.C. 1491; see United States v. Testan, supra, 424 U.S. at 400. Thus, Section 3(c) may be fairly read as mandating compensation for the Secretary's failure to adhere to a termination agreement. Congress' failure, by contrast, to expressly mandate any particular level of services in the statute, much less to mandate payment of any sum of money, militates strongly against implication of a damages remedy for non-contractual disputes. 424 U.S. 402 (distinguishing Selman v. United States, 498 F.2d 1354 (Ct.Cl. 1974)). The Court of Claims also rested its decision upon the view that the various provisions of the Rancheria Act were intended to achieve the overriding objective of economic self-sufficiency for the California Indians involved (App. A, infra, 14a-16a & n.13). With this general proposition we have no quarrel, but it is insufficient to overcome the "presumption" against the availability of a damages remedy against the United States. See Eastern Transportation Co. v. United States, 272 U.S. 675, 686 (1927). Reference to a common theme that links the various provisions of the Rancheria Act simply does not supply the "affirmative statutory authority" (United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 513-514 (1940)) necessary to maintain an action for damages against the United States. b. Although the Court of Claims' decision rests ultimately upon what the court characterized as "legislative creation of a general trust relationship as to the property of the Robinson Rancheria" (App. A, infra. 14a, 16a), the decision draws in part upon generalized notions of the special "trust" tenure in which the United States holds lands for Indian tribes, and the special relationship between the United States and Indians generally (App. A, infra, 9a-14a). Here, as in Mitchell II (Pet. 20), we hasten to acknowledge that the relationship between the United States and the East Lake Pomos, like that extending to the Indian tribes generally, is a special one that may give rise to enforceable legal obligations supplementing the statutory provisions that govern the Secretary's relationship with the Indian tribes. /17/ Yet, as is also explained in our petition in Mitchell II (Pet. 20-22 & n.17) this fiduciary relationship has no bearing on the availability of damages as a remedy for a statutory violation. /18/ In this respect Indians are not situated differently from any other claimant against the United States; the requirement of unequivocal congressional consent to suit is as strictly enforced against Indian claimants as others. See, e.g., Klamath Indians v. United States, 296 U.S. 244, 250, 255 (1935); Blackfeather v. United States, 190 U.S. 368, 376 (1903). Thus, it does not follow that every statute that implements some aspect of the special relationship between Indians and the United States constitutes the "affirmative statutory authority" necessary to recover damages against the United States. United States v. United States Fidelity & Guaranty Co., supra, 309 U.S. at 513-514. Rather, the question in every case must be whether the statute can fairly be interpreted as authorizing a damages remedy. There is nothing in the indicia from which the Court of Claims inferred congressional intent to hold the Robinson Rancheria in trust (see App. A, infra, 9a-14a), that suffices to mandate the availability of a damages remedy. The 1906 and 1908 Appropriation Acts to which the Court of Claims pointed reflect only the intention that land be purchased "for the use of" landless California Indians; no express trust is created such as might strengthen the inference that a damages remedy -- an incident of a private trust -- was made available by Congress. Compare United States v. Mitchell, supra, 445 U.S. at 550 (White, J., dissenting). Reliance upon the Secretary's acknowledgment of the existence of a trust relationship is equally unavailing. This was no more than an expression of the general guardianship relationship between the United States and Indians and does not reflect congressional authorization for the recovery of damages. The same is true of Section 3(e) and 9 of the Rancheria Act, cited by the Court, which employ the term "trust" simply to denote the special relationship between the United States and the California Indians. We have no doubt that these factors were properly considered by the district court in determining that the Secretary's termination of the Robinson Rancheria was unlawful; but it is equally plain that none of these factors, or all three taken in combination, is sufficient to authorize maintenance of this damages action. 2. The Court of Claims' ruling on damages (App. A, infra, 21a-29a) do not cure the essential defect of its original rulings (App. B, infra, 46a-52a) on this subject. Thus, although on remand the court paid lip service to the limiting principle of proximate causation (App. A, infra, 25a, 28a-29a), the court actually continued to allow recovery of damages, such as those for loss of tax immunity, that were not proximately caused by the only statutory violation or breach of trust found by the court to have occurred: the Secretary's failure to provide, prior to termination, water and sanitation facilities required by the Rancheria Act. Assuming arguendo that damages are available to respondents, the award should be calculated simply to restore them to the position they would have enjoyed had there been no violation of the statute. Such damages are limited to any injury or loss directly caused by the absence of adequate water facilities. The Court of Claims' mistaken belief that it had honored the principle of proximate causation flowed from its failure precisely to define the violation to be redressed. Thus, rather than focus upon the particular statutory violation identified, the court labeled the violation a "breach of trust," and inferred from that characterization that the termination itself was wrongful (App. A, infra, 25a). The court proceeded to analyze the damages claims by asking whether they were proximately caused by the "unlawful termination," rather than asking whether they were attributable to the actual wrong: failure to provide adequate water and sewer facilities. The expanded liabilities established by this shift in frame of reference are unwarranted, however, for the termination itself was not a wrong; rather, under the Rancheria Act, Congress specifically dictated that the California Rancherias be terminated. Accordingly, the termination itself does not constitute actionable injury. So far as has been found to date, the termination of the Robinson Rancheria was defective only because of the Secretary's failure first to provide an adequate water and sewer system; it is only that default that is to be redressed by an award of damages. /19/ The Court of Claims, however, went far beyond allowing damages for the statutory violation. Damages for loss of tax immunity or for land lost in tax sales could not be recovered under the proper standard -- for if the Secretary had complied with Section 3(c) the respondents would have lost their tax immunity anyway. Similarly, no damages can be awarded to compensate for respondents' loss of eligibility for health and welfare benefits available to federally recognized Indians -- even if such damages would have been available to an unterminated Indian denied such benefits. Respondents' right to such benefits was severed by Congress in the Rancheria Act. Recovery should also have been precluded as to several other categories of damages left open by the Court of Claims: compensation for improvident sales of rancheria lands to non-Indians by individual respondents, and costs attributable to application of California building codes. These damages were not caused by the Secretary's statutory violation; they merely followed that action chronologically. In short, the court's admonition, that "(t)he test should always be that of proximate causation by proven breach of trust" (App. A, infra, 28a-29a), was dishonored by the court in practice. 3. The decision of the Court of Claims continues the dramatic expansion of the government's liability in damages commenced by Mitchell II. As we have noted, the issues tendered here are intimately related to those presented by our petition in Mithcell II. Although the decision here rests upon Mitchell II, it represents a significant generalization of the rule applied in Mitchell and illustrates well the range of liabilities that might be fastened upon the United States. We accordingly suggest that plenary consideration of this case in tandem with Mitchell II would be appropriate. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General CAROL E. DINKINS Assistant Attorney General LOUIS F. CLAIBORNE Deputy Solicitor General JOSHUA I. SCHWARTZ Assistant to the Solicitor General ROBERT L. KLARQUIST THOMAS H. PACHECO Attorneys MARCH 1982 /1/ The record does not indicate whether any new homes attained 50% completion during this period, nor is there anything to suggest that the Secretary failed in any way to comply with this arrangement. /2/ A nonprofit Robinson Pomo Association was created to take title to certain communal assets of the East Lake Band, including the Woodlot. Title thereto was conveyed in 1963. /3/ The proclamation terminating the reservation status of the Rancheria was delayed to preserve the eligibility of the distributees for the construction of sewage facilities under the Act of July 31, 1959, Pub. L. No. 86-121, 73 Stat. 267, 42 U.S.C. 2004a(a) (authorizing Surgeon General to construct sewage facilities on Indian lands). /4/ In the district court, respondents argued that the Rancheria Act imposed an absolute duty upon the Secretary to provide an adequate water supply to the distrbutees before conveying the land to them, and that the Robinson Rancheria termination was therefore unauthorized and voidable. The government acquiesced in this interpretation of the Rancheria Act and acknowledged that it had some fiduciary duty to the East Lake Pomos, at least until the date of the termination. The government further agreed that the termination should be set aside. /5/ The titles of third-party purchasers of distributed lands were not affected by the judgment of the district court. The court suggested that distributees who had sold such property might pursue a damage remedy in the Court of Claims (App. C, infra, 67a). /6/ The government did not deny that services authorized by Section 3(c) of the Rancheria Act had not been provided. Instead, the government argued that the statute afforded the Secretary discretion in providing services and that his actions were a reasonable exercise of that discretion and not a breach of trust. /7/ The court also rejected the government's contention that the respondents' claims were time-barred under 28 U.S.C. 2501 because filed more than six years after termination of the Rancheria. The court concluded that the claims were timely filed in the district court and noted that the transfer statute (28 U.S.C. 1406(c)) provides that a transferred case is to proceed "as if it had been filed in the Court of Claims on the date it was filed in the district court" (App. B, infra. 53a-54a). /8/ Our petition presented both the question whether statutory authority exists for recovery of damages vel non and the question whether, if damages are recoverable, they may include compensation for injuries not caused by the statutory violation and breach of trust identified. /9/ A petition for a writ of certiorari to review the Court of Claims' Mitchell II decision is being filed simultaneously with this petition. Copies of our petition in Mitchell II are being provided to respondents. /10/ The court explained (App. A, infra, 8a) The pith of it is that the Supreme Court's Mitchell decision, which dealt with a quite different statute and set of facts, bears only indirectly on the present case, and to the extent it has an impact we believe we have properly taken it into account in our Mitchell II ruling and in this opinion. /11/ In addition, the court stated (App. A, infra, 9a) that it was bound by a finding entered in the district court proceedings that the Rancheria was held in trust. /12/ The court reserved the question whether the Secretary's failure to reserve each respondent an easement to the Woodlot was a breach of trust for determination upon remand to the Court's Trial Division (App. A, infra, 28a), but appears to have assumed that the United States had a fiduciary obligation in this regard, which, if breached, would support an award of damages. /13/ Respecting the claim for damages for subjection of respondents to California building codes, the court said (App. A, infra, 28a) if plaintiffs can demonstrate that the Government's unlawful termination exposed them to state regulations which directly and proximately increased the costs of building or maintaining homes on the Rancheria, then recovery should be allowed (but damages should not be awarded because state regulation was "inconsistent with an Indian way of life"). /14/ Although the United States had not challenged the Court of Claims' ruling that respondents' claims were timely filed in our prior petition for a writ of certiorari, and did not pursue the statute of limitations defense upon remand, the Court reiterated (App. A, infra, 29a-30a) its rejection of that defense. The court declined to reach, however, respondent's alternative theories of recovery based upon an alleged breach of the termination agreement, and an alleged "taking" (id. at 30a n.25). /15/ Here, as in our petition in Mitchell II, we follow the terminology of this Court's Testan and Mitchell opinions by speaking of a failure to waive the bar of sovereign immunity. In Testan the court stated that the Tucker Act is merely "jurisdictional," intimating that it does not effect a waiver of sovereign immunity. 424 U.S. at 398, 400. And in Mitchell the court repeated that the respondents "must look beyond the jurisdictional statute (the Tucker Act) for a waiver of sovereign immunity with respect to their claims." 445 U.S. at 538. Technically, we think it more accurate to say that the absolute immunity of the United States from being sued eo nomine. See, e.g., United States v. Sherwood, 312 U.S. 584, 590 (1941). The waiver is effective whenever an independent basis for recovery of damages exists, be it a contract, the government's retention of funds owned by the claimant (see United States v. Testan, supra, 424 U.S. at 400) or another statute that creates a right of action in damages against the United States for breach of a statutory command (ibid.). But it cannot matter how the point is articulated. It is entirely clear that no recovery can be had under the Tucker Act in respect of a claim founded upon an Act of Congress unless the statute invoked, construed in the conservative manner appropriate to a waiver of sovereign immunity (see United States v. Sherwood, supra, 312 U.S. at 590-591) can be said to make the United States answerable in damages for the conduct of federal officials in violation of the particular statute. United States v. Testan, supra, 424 U.S. at 400. It goes without saying that the semantic reformulation we propose would not call in question the fundamental reasoning, much less the result, of Testan, this Court's earlier Mitchell decision, or any other of this Court's decisions. /16/ We note that the court did not identify any statutory basis for holding, as it appears to have done (see note 12, supra), that the United States had a trust duty to exercise proper care regarding the preservation of access to the Woodlot. /17/ It is precisely for this reason that the government conceded in the district court and in the court below that it had not fulfilled its obligations under Section 3(c) of the Rancheria Act. Absent the fiduciary background, a fair argument could have been made that under the statute, failing prompt agreement between the Secretary and the affected Indians as to the facilities to be provided, the Secretary was released from all enforceable obligations. Similarly, we do not challenge here the district court or Court of Claims' premises that the Secretary did not comply with Section 3(c), that the Secretary's relationship with respondents has a fiduciary character, or that his conduct may be deemed a breach of trust. We simply question the ultimate conclusion that these are sufficient to hold the United States accountable in damages. /18/ Significantly, as we observe in Mitchell, this Court has never held that the special guardian-ward relationship between the United States and the Indian tribes is sufficient to subject the United States to damages liability for breach of such duties. /19/ There has never been, nor, it would seem, could there ever be, a showing that the respondents would have refused to agree to termination had the Secretary complied with his obligations under Section 3(c). Damages traceable to the termination itself, accordingly, were not proximately caused by the wrong identified. Appendix Omitted